13.2 CATEGORIES OF POTENTIALLY DISCOVERABLE ELECTRONIC DOCUMENTS AND INFORMATION
13.201 In General. To conduct and respond to discovery effectively, an attorney needs to understand how events, ideas, communications, data compilations, and analyses are contemporaneously recorded and stored. For centuries, significant events and ideas have been contemporaneously recorded and communicated on paper documents. Today, paper documents constitute only a selectively composed snapshot of contemporaneously recorded events and ideas. The actual recordation increasingly occurs in digital form on computer storage devices, and those devices are ever evolving regarding what they can store and how the information on them can be obtained. Communications in both the personal and business world are increasingly entirely electronic. For some cases, it is not the communications that are critical to discovery, but rather the data created, received, and otherwise maintained and analyzed by various departments within a client company.
Much of a business's ESI is in the form of electronic files. Electronic files generally store information in a standardized format that can be used by one or more applications. Most businesses utilize word processing files and spreadsheet files for creating and storing business records. There are other types of proprietary software for more specialized applications. Files typically have an alphanumeric name9 and can be stored on a computer storage device. Computer storage devices include physical or virtual computer hard drives, the flash memory inside a mobile device, remote servers, and legacy data on CD-ROM disk or digital tape.
Unless the file is simple and transitory, it will usually evolve over time. Certain collaboration channels, databases, or spreadsheets may evolve for years. Usually, as the file is revised, the new version replaces (overwrites) the last version. When this occurs, the record of the earlier version is often lost, although some computer systems have an auditing "trail" function or document management system that will store each revision separately. In this type of system, it may be possible to reconstruct the evolution of the document over time. Historical versions of electronic files are often just as relevant in discovery as current versions. Most modern cloud-based collaboration tools do not preserve versioning.
13.202 Email. Because of its pervasiveness,10 email warrants special attention in any litigation by both the requesting and the responding attorney. Certain aspects of email communication are attractive not only to email users, but also to litigators. First, large numbers of people communicate by email in a candid and informal manner that would not be used in traditional written memoranda. Second, the number of users and ease of use results in email replacing much oral communication. Third, the nature of email and the manner in which it can be copied and stored, even without any effort on the part of the sender or receiver, makes it a more permanent record than a conversation, a casual handwritten note, or even a typewritten note.11 Fourth, many email users do not regularly delete messages, and even those who do attempt to delete them may not realize that copies may still exist in the mailboxes of other senders and receivers or in backup storage long after the message has been forgotten. Though the volume of retrievable email in a large company's files can be staggering and present cost concerns, the impact of email on litigation can in some cases be quite significant.
13.203 Mobile Devices and Messaging Communications.
Messaging services have exploded in popularity both with individuals and corporate users, and, for some users, have replaced email as the default method of casual communication.12 Historically, messaging was bifurcated between mobile device messaging services (e.g., Short Message Service (SMS) messages, Rich Communication Service (RCS) messages, BlackBerry PIN messages) and computer messaging (e.g., AOL Instant Messenger). Not only are the number of messaging services growing, but most (e.g., Apple iMessage, WhatsApp, Skype for Business, Slack, Zoom) are now cross-platform. Further, most messaging services are adopting characteristics of file-sharing services and social media at the same time that social media platforms such as LinkedIn and Instagram and collaboration platforms such as Zoom, Teams, and Google Suite have integrated private and group messaging features. All have browser and mobile app functionality. Many integrate to wearable technology or external devices such as a watch, step counter, GPS tracing device, camera, or a virtual assistant.
These brief and informal messages may be subject to a party's duty to preserve and produce relevant information. Because of the ease and perceived privacy of sending short messages instantaneously, text messages have largely replaced email as a form of brief, "chatty" communication. Regardless of its informality (often because of it), this information is potentially discoverable depending on the facts of the individual case and whether the burden of either preserving or producing that information, which can be substantial, would be worth the benefit of obtaining that information.13
Similarly, mobile devices such as cellphones and wearables may be a source of communications and other records that are not text-based, such as voicemails, images, or location tracking, that are within the realm of potentially discoverable information. Custodians commonly create and share photos, videos, and screen captures of accident scenes, altercations, and conversations, as they are experienced in real-time. Those records are frequently backed up to cloud accounts or shared with little or no descriptive text to provide context. The informal nature of modern messaging lends itself to jargon, abbreviations, misspellings, lack of punctuation, and emojis. Litigation counsel evaluating their preservation and collection strategy should consider whether the case is one that may involve non-traditional content shared between devices with potentially key metadata about date, time, and GPS location embedded throughout—but perhaps no text or keywords to be found.
Retention is a notable challenge associated with identification, preservation, and collection of messaging and other mobile data. SMS messaging apps on various operating systems are often configured by default to periodically auto-delete messages to preserve storage space—and users are frequently unaware of this feature. Some courts have identified an obligation for litigants (or their counsel) to include clear instructions in their legal hold notices that require proactive steps to ensure that potentially responsive communications are not deleted by an automatic system process before they are preserved.14 In contrast, messaging built into certain other platforms such as Instagram tend to linger potentially indefinitely—making filtering and unitization for discovery review and production a challenge. Consider also that many platforms are designed to send encrypted content that will be seen only one time and then completely destroyed. While public perception may accept that there are legitimate business uses for this level of privacy15 and some of these ephemeral messaging apps offer Enterprise-level compliance tools to demonstrate their commitment to lawful conduct, counsel should advise their clients that courts will tend to mistrust patterns of communication designed to evade discovery.16
Technology and its application is evolving faster than the tools that exist to track and collect the data created. The pervasive "smart" devices in most homes and businesses all gather data (actively and passively) that could be relevant to a future claim. Once a team has determined what data is available, where and how it is actually maintained, and whether and how to preserve and collect it, the information still needs to be sifted for meaning. The structured data collected by a virtual assistant, a smart watch, a vehicle's telematics system, a home security camera and lighting system, and a coupon app that has location tracking integration may each only provide context for other digital evidence that must be pieced together and authenticated. This is an area where counsel should consider retention of a specialized service provider to help counsel tease the signal from so much noise.
13.204 The Cloud and Collaboration. Cloud computing has enabled individuals and companies to use shared computer resources, such as a virtual machine, storage, and applications over an internet connection, rather than relying on infrastructure housed within the company's building. Enterprise cloud services are large-scale analogs to consumer cloud services such as webmail, file hosting...
