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
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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' 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 software for more specialized applications. Files typically have an alphanumeric name 9 and can be stored on a computer storage device. Computer storage devices include computer hard drives, the flash memory inside a mobile device, CD-ROM disk, or digital tape.
Unless the file is simple and transitory, it will usually evolve over time. Certain database or spreadsheet files may evolve for years. Usually, as the file is revised, the new version replaces (i.e., 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.
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
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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 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 Transient Messaging Communications. Messaging services are rapidly growing in popularity both with individuals and corporate users, and are quickly replacing emails as the preferred method of casual communication. 12 Historically, messaging was bifurcated between mobile device messaging services (e.g., Short Message Service (SMS) messages, BlackBerry PIN messages) and computer messaging (e.g., AOL Instant Messenger). Not only are the number of messaging services growing, but many modern messaging services (e.g., Apple iMessage, WhatsApp, Skype for Business) are also cross-platform. Further, most messaging services are adopting characteristics of file sharing services and social media.
These brief and informal messages may be subject to a party's duty to preserve and produce relevant information. Because of the ease in sending short messages instantaneously, SMS texts are quickly replacing instant messaging and email as a form of brief, "chatty" communication. Regardless of its informality, 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.14 13
Similarly, voice mail communications are within the realm of potentially discoverable information. The Northern District of California, for
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example, requires parties to review the court's electronically stored information (ESI) guidelines, which include a highly recommended checklist for counsel to confer upon, and that checklist includes discussion of "[w]hether or not to continue any interdiction of any document destruction program, such as ongoing erasures of e-mails, voicemails, and other electronically-recorded material." 14
13.204 The Internet. Anyone connected to the Internet can access an exponentially expanding wealth of information through an array of communication methods such as email, listservs, message boards, SharePoint sites, and the World Wide Web. 15 The Internet is a vast, largely undisciplined source of information.
Most businesses now have websites, and many are at least partially available to the public. In a self-promoting manner, entities can describe themselves, their business, and often their principals or officers on websites in hopes of encouraging profitable market activity, and these sites can contain a great deal of information about their history, personnel, products, and future plans. More sophisticated sites may include interactive areas and a list of frequently asked questions (FAQs). Some company sites have also allowed their employees to maintain blogs or wikis on the pages in a largely unsupervised manner. Because these sites are created for self-promotion and usually without much thought of litigation, their content may not have been prepared with the caution customarily exhibited in documents prepared for litigation.
Careful litigators should review the public websites of both their clients and their adversaries and should not overlook the Internet as a potential source of valuable extrajudicial evidence. A thorough litigator should search the Internet, as he or she would any other source of public information, to determine what is available. However, the material found should be passed through a filter of skepticism, realizing that much may be unreliable and most will be inadmissible. 16 The value to be gained here is
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primarily in the form of leads to other lines of inquiry and potential sources of admissible evidence.
13.205 Social Media. Social media sites, such as Facebook, MySpace, LinkedIn, Twitter, YouTube, Flickr, Instagram, Tumblr, Pinterest, and Google+, operate through the Internet and have changed how individuals communicate with one another. They can also provide key pieces of potentially relevant information discoverable in civil litigation. The use of these sites has expanded exponentially over the past five...
