Electronic stored information (ESI) is a fundamental element in today’s business environment along with email records. Today the great majority of business runs on computing information that is stored and shared, transferred, and collaborated on within a network. Technological network where electronic stored information serves as business records and communications by email records comprise an in depth source of the fabric of an entity. This fabric, so-to-speak becomes useful evidence comprised of databases, spreadsheets, audio files, calendars, programs, emails, and even external intrusions such as malware and spyware can be investigated.
The rules give the courts a list of considerations when ordering a party to produce ESI based on good cause. They are discovery request specificity, the amount of information that is otherwise available from other sources, party failing to produce relevant information that possibly existed but is no longer available from other sources, potential that responsive information would be obtained that cannot from other means, how important is the information and the issues sought, and the period of time of the information sought, weighing in on cost and burden.
Businesses must consider technological options to manage their ESI and their costs as a normal cost of business. Being prepared by having their records in an archival and searchable manner will provide the ability to be prepared in case there is the need for litigation. The argument that having ESI information retained in a searchable manner is too cost burdening for a business is not convincing to the courts. This argument will not serve well on seeking the court to excuse when the lack of adequate ESI in an archival and searchable manner leads one of the parties to incur restoration costs.
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