Industry Insights: New Forms of ESI and Best Practices for Preservation and eDiscovery


Dana Bucy Miller

As a Director of Delivery, Dana Bucy Miller provides strategic support and litigation project management for some of the world’s largest companies and institutions and premier law firms. Dana specializes in complex, large-scale document review workflows and using advanced technology and analytics to increase accuracy and efficiency.

When “electronically stored information” or “ESI” first became a key phrase in litigation discovery, the electronic portion pertained primarily to the retention and preservation of email communications. However, as technology continues to develop, the amount of electronic data created grows exponentially.

Changing trends in technology

In its annual study, Domo estimates that by 2020 each person will create 1.7MB of data every second. Beyond email, this includes data created by text messaging and instant messaging platforms, social media, websites, web browsing history, video and audio files, databases, and log files. These varied data types are increasingly being relied upon in litigations involving both private enterprises and government organizations.

For example, Lawrence v. Rocktenn CP LLC, No. 16-821, 2017 WL 2951624, at *1(W.D. La. Apr. 19, 2017), Walker v. Carter, No. 12-cv-05384, 2017 WL 3668585, at *2 (S.D.N.Y. July 12, 2017), and Dennis v. Red River Entertainment of Shreveport, LLC, No. 14-cv-2495, 2016 WL 8728856, at *1-2 (W.D. La. Jan. 8, 2016) all held that text messages were discoverable and required to be produced to the extent relevant to the issues of the case.

Further, the courts have acknowledged that the information contained in social media profiles or generated by a party through his or her use of a social media platform may be relevant to issues raised in a complaint. See Smith v. Hillshire Brands, No. 13-2605-CM, 2014 WL 2804188, at *4 (D. Kan. June 20, 2014. However, access to an individual’s social media account is not an unfettered right and is limited to a demonstration of a relevant basis for the information sought. See Ogden v. All-Star Career School, 2014 WL 1646934, at *4 (W.D. Pa. April 23, 2014).

The expanded scope of discovery

The scope of discoverability has also extended to non-communicative data entered into smart phone applications. For example, the court in Cory v. George Carden International Circus, found that “a mobile app that indicates a Plaintiff performs strenuous activities may be relevant to claims of injury or disability. 2016 WL 3460781, AT *2-3 (E.D. Tex. Feb. 5, 2016). Beyond the data contained in the app, the plaintiff also was required to produce activity logs, browser histories, and event logs. Id. However, the court was careful to limit the scope of the inquiry and refused to grant access to all of the contents of the plaintiff’s electronic devices on the basis of privacy concerns. Id.

Additionally, multimedia data has become crucial in some cases. In Al Otro Lado, Inc. v. Nielsen, 328 F.R.D. 408 (S.D. Cal. 2018), the court determined that DHS surveillance videos of asylum seekers was integral to plaintiffs claims and denied DHS request to destroy the footage on the basis that its retention was unduly burdensome.

New challenges emerge

Where the increase in electronically stored information becomes particularly problematic is in the sheer volume that is generated on a regular basis and the lack of data deletion policies to purge excess irrelevant information or sufficient tools and processes to capture and retain this data for future use. In order to remain in compliance with discovery obligations and litigation hold policies, it is important that an organization think proactively about how to best address these new forms of ESI.

Some ways of managing or reducing the volume of data created are to:

  • Limit the number of applications and devices used by employees or within the business operations.
  • Create and implement a corporate policy for the use of mobile and electronic devices.
  • Review data deletion policies to ensure that unnecessary data is routinely purged.

With the proper plan in place, businesses will ensure compliance with discovery obligations as well as save space and money on storage of data.

Dana Miller is a project manager for Special Counsel. Connect with her today!

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