In 2013 every virtually all of our individuals and businesses use computers and the Internet to send emails, participate in Social Media, and conduct business. As a result the proliferation of Electronically Stored Information (ESI) will undoubtedly continue to grow in the future. With the social changes brought about by the evolution of Social Media more sources of ESI have become part of the evidence in litigation throughout the world. This paper will provide advice about ESI and admissibility at trial.
I. WHAT IS ELECTRONICALLY STORED INFORMATION (ESI)?
With the advent of ESI in litigation a group called the Sedona Conference was founded in 2002. (https://thesedonaconference.org/) Since then has been provided a wealth of information about ESI. Of course much of the impetus for courts to get a handle on ESI was the incredible volume of ESI and its ubiquitous nature, not to mention that a number of US District Judges issued significant Order for the destruction of ESI which penalized many litigants. As a result of much discussion and public vetting the in 2006 Federal Rules of Civil Procedure were amended specifically to deal with ESI. Since the US District Courts hear both criminal and civil matters it seems pretty clear that the impact on the federal judiciary will never be the same.
One of the benefits we have today is that in 2012 the Federal Judicial Center published “Managing Discovery of Electronic Information: A Pocket Guide for Judges, Second Edition” (the “Pocket Guide”) (http://www.fjc.gov/public/pdf.nsf/lookup/eldscpkt2d_eb.pdf/$file/eldscpkt2d_eb.pdf)