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The universe of electronically stored information (ESI) is expanding like, well, the Universe. This presents a challenge to legal firms, companies, and ediscovery practitioners with respect to ESI management and preservation. Just consider the breadth of ESI that needs to be considered in a law firm’s preservation letter demand. While a preservation demand of the 1990s might have included computer hard drives, floppy discs, telephone answering machine messages, and emails, the gamut of today’s ESI covers over two dozen categories with multiple subcategories and numerous formats in combined numbers that are ever growing with the fast pace of technological advances.       

“Perfect Preservation Letter” Highlights Breadth of ESI

The breadth of today’s ESI is perfectly encapsulated in an update of Texas trial attorney and computer forensic examiner Craig Ball’s “Perfect Preservation Letter.” Craig wrote—and gained prominence from—his original “Preservation Letter” article (with preservation letter template) that he published in 2006. As he noted at the time, such advice was needed because “[t]he reality of electronic discovery is that it starts off as the responsibility of those who don’t understand the technology and ends up as the responsibility of those who don’t understand the law.” 

Craig’s original article remains relevant and is well worth a read. Consider this gem about preservation letter timing: “The conventional wisdom is that preservation letters should go out as soon as you can identify potential defendants. But there may be compelling reasons to delay sending a preservation letter. “For example, when you face opponents who won’t hesitate to destroy evidence, a preservation letter is just the starting gun and blueprint for a delete-o-thon.”

He released his updated preservation letter template last month, in part to account for the expansion of and change to ESI technology. If you’re an attorney, though, don’t just go out and use this template as your firm’s new preservation letter. Instead, as advised by the template’s preface: “What follows isn’t the perfect preservation letter for your unique case, so don’t deploy it as a form. Instead, use it as a drafting aid to flag issues unique to relevant electronic evidence, and tailor your preservation demand proportionally, scaled to the unique issues, parties, and systems in your case.”    

Breadth of Preservation Letter ESI Considerations

No matter in what capacity you work with ESI and ediscovery, Craig’s perfect preservation letter offers a good description of what ESI needs to be considered for legal purposes, as well as a list highlighting the breadth of ESI. eDiscovery practitioners and ESI managers may want to post a copy of this description and list near their workspaces for a quick and easy reference: 

“Electronically stored information (hereinafter “ESI”) should be afforded the broadest possible meaning and includes (by way of example and not as an exclusive list) potentially relevant information electronically, magnetically, optically, or otherwise stored as: 

-Digital communications (e.g., e-mail, voice mail, text messaging, WhatsApp, SIM cards)

-E-Mail Servers (e.g., Microsoft 365, Gmail, and Microsoft Exchange databases)

-Word processed documents (e.g., Microsoft Word, Apple Pages or Google Docs files and drafts)

-Spreadsheets and tables (e.g., Microsoft Excel, Google Sheets, Apple Numbers)

-Presentations (e.g., Microsoft PowerPoint, Apple Keynote, Prezi)

-Social Networking Sites (e.g., Facebook, Twitter, Instagram, LinkedIn, Reddit, Slack, TikTok)

-Online (“Cloud”) Repositories (e.g., Drive, OneDrive, Box, Dropbox, AWS, Azure)

-Online Banking, Credit Card, Retail and other Relevant Account Records

-Accounting Application Data (e.g., QuickBooks, NetSuite, Sage)

-Image and Facsimile Files (e.g., .PDF, .TIFF, .PNG, .JPG, .GIF., HEIC images)

-Sound Recordings (e.g., .WAV and .MP3 files)

-Video and Animation (e.g., Security camera footage, .AVI, .MOV, .MP4 files)

-Databases (e.g., Access, Oracle, SQL Server data, SAP)

-Contact and Customer Relationship Management Data (e.g., Salesforce, Outlook, MS Dynamics)

-Calendar, Journaling and Diary Application Data (e.g., Outlook PST, Google Calendar, blog posts)

-Backup and Archival Files (e.g., Veritas, Zip, Acronis, Carbonite)

-Project Management Application Data

-Internet of Things (IoT) Devices and Apps (e.g., Amazon Echo/Alexa, Google Home, Fitbit)

-Computer Aided Design/Drawing Files 

-Online Access Data (e.g., Temporary Internet Files, Web cache, Google History, Cookies) 

-Network Access and Server Activity Logs”

If you work with ediscovery and ESI there’s little doubt that you can easily come up with overlooked sources of ESI, but this certainly represents a good start for an ESI for ediscovery list. If you’re an attorney, the letter template in full will undoubtedly aid you in your preservation demands.  

About the Author:

M.J. Moye

M.J. Moye

M.J. Moye is a demographics researcher and freelance writer. His interest in law was spurred by covering two Supreme Court cases and other legal issues during his stint as a Washington, DC journalist. In addition to Now Discovery, he currently provides on-call writing services to several lawyers. When not counting people or writing, he spends his time sailing the beautiful waters of Nova Scotia.

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