YourABA December 2011 Masthead

Understanding ESI concept, scope imperative to effective client representation, say ABA panelists

ESI stands for “electronically stored information,” but, in effect, the “E” also means “evidence,” noted Illinois lawyer discipline counsel Wendy Munchman at an ABA Midyear Meeting session Feb. 3 on e-discovery, public records and metadata sponsored by the ABA Government and Public Sector Lawyers Division.

As such, the panelists said, lawyers need to be aware of the concept and scope of ESI in order to represent their clients effectively and ethically.

"... lawyers need to be aware of the concept and scope of ESI in order to represent their clients effectively and ethically."

What exactly is ESI? Anything that is stored in electronic form, including word processing documents, emails, text messages, Facebook pages, electronic photos, web pages, Internet activity and anything else that is produced and stored digitally, said John Simek, a computer forensics technologist from Fairfax, Va. Simek advises lawyers in the area and co-authored several related ABA books, including The Electronic Evidence and Discovery Handbook: Forms, Checklists and Guidelines.

According to course materials, one gigabyte of information (a basic iPad holds eight gigabytes of storage) constitutes about 75,000 pages, or a full pick-up truck of documents.

So, when faced with a discovery request, lawyers from both sides of a dispute should consult as soon as possible to try to agree on limits of the amount of information to be sought and reviewed, lest the task gets unmanageable, said David Ries, a Pittsburgh lawyer who chairs his firm’s e-discovery and records management group.

David Degnan, a Scottsdale, Ariz., lawyer whose construction, insurance and government investigations practice often involves e-discovery and data management, added that it’s important for counsel to sample a large database to determine what’s truly relevant to the discovery request and, with agreement of the opposing party, narrow down the production accordingly.

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Panelists pointed out that a crucial component of ESI is metadata, or “data about data.” Metadata—which has been called “the DNA of the electronic world”—is the identifying information that is imbedded in an electronic file such as a document, photo or email that isn’t readily visible but can still be accessed and be relevant to a case.

Ries said that metadata is therefore evidence and generally cannot be removed or altered when a client is facing or expects to face litigation.

Panelists discussed the seminal ruling in the Arizona case of Lake v. City of Phoenix, which held that the city was required to comply with an open records request by producing documents with the metadata intact.

ESI and ethics

While Simek, Ries and Degnan discussed client counseling and litigation aspects of ESI—including the value to organizations of consistent and clear records-retention policies—Munchman primarily covered the ethics aspects of handling ESI. She pointed out that lawyers have been disciplined for actions such as instructing a witness to delete incriminating photos on a client’s Facebook page.

Munchman also pointed out resources of the ABA Legal Technology Resource Center, including a list of state ethics opinions advising on how lawyers should handle metadata and avoid, among other things, violating client confidences by inadvertently releasing files with confidential metadata intact.

For more information about ESI, metadata and e-discovery, panelists recommended the online resources at craigball.com and The Sedona Conference.

With so much attention paid to the technological frontiers and related concerns of ESI, Simek said, lawyers still need to focus on another, old-fashioned form of documents.

“We still have to deal with paper on occasion as well,” he said. “I find a lot of cases where the attorneys get so fixated—everything electronic, everything electronic, that they forget that some things only exist in paper.”

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