ESI and E-Discovery

ESI and E-Discovery Overview

On December 1, 2006, amendments to the Federal Rules of Civil Procedure concerning the discovery portion of the litigation process went into effect. Similar legislation was previously enacted in many states. Although discovery has included electronic materials for some time, the amendments specifically recognize ESI, or electronically stored information, and E-Discovery, the process by which ESI is exchanged during the early stages of litigation.

ESI includes all data contained in electronic format ranging from instant messages, to voice mail, to word processing documents – whether stored on a hard drive, a PDA or a flash drive. Evidence of destruction or failure to produce ESI during E-Discovery can lead to costly penalties, sanctions, and loss of the lawsuit as a whole.

Things to consider:

To prepare for the potential need to comply with these new rules, EDUCAUSE strongly encourages IT and legal departments to work together to develop the necessary policies and practices for compliance. Parties to litigation must be able to:

• Identify what may constitute relevant ESI
• Locate ESI on media and information systems
• Define who is responsible for locating, retrieving, and producing the ESI, and ensure that party is prepared to testify in court as to the institution's policies
• Preserve, search and analyze ESI
• Institute a "litigation hold" whereby all potentially relevant information is preserved in its original form

The resources available on the page have been provided by colleges, universities, and other parties interested in helping institutions of higher education formulate their own policies to handle ESI.