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On one level, the definition of ediscovery is easy to explain. It is simply the process of discovery in legal, regulatory, and investigative proceedings when what is being sought is electronically stored information.

To fully describe the concept, however, requires us to unpack and examine several ideas that have an impact on ediscovery in the real world.

Why Is Electronically Stored Information Different?

One of the reasons the definition of ediscovery provided above doesn’t adequately capture the complexity of the subject is that information in electronic format, also known as electronically stored information (ESI), is fundamentally different from hardcopy information.

Easily Stored

Compared to information on physical paper, ESI is easily and cheaply stored. While paper databases quickly grow to consume entire filing cabinets, rooms, and buildings, electronic information is stored on comparatively tiny hard drives and removable media.

Many of us have seen the difference a switch to ESI can make for an organization. When I was working as a prosecutor in northern Manitoba, Canada, our paper file room was thousands of times the size of the hard drives that eventually stored the exact same information. Which leads me to my next point.

Voluminous

Because it’s so easily stored, ESI can quickly become voluminous beyond imagining. It’s not unusual for even small organizations to store dozens, hundreds, or even thousands of terabytes of information on their internal servers. Have a look at my last article where we describe a case in which a company made the…interesting decision to backup all of their data onto tapes. Yes. Tapes.

Many Locations

Much of that voluminous information tends to be duplicative, as ESI is easily copied and is often stored in multiple locations within the same organization. Information might be found on a backup server, on an employee’s hard drive, on a USB stick, and on a remote server in the cloud.

Many Forms

ESI tends to take many forms. Unstructured text, spreadsheets, images, video, audio, and code can all be found in databases.

Persistent

ESI tends to be difficult to destroy. Whereas a piece of paper just needs to be properly shredded and incinerated, even deleted ESI can often be recovered with the right tools or by finding a duplicate copy in another location.

Metadata

ESI contains metadata, or, data about the data. For example, a digital photo may contain information about where and when it was taken. A text file may contain information about who was logged into the computer it was written on at the time of its creation.

The Complexity of Discovering Electronically Stored Information

Any adequately robust definition of ediscovery has to take into account the complexity of the task involved when trying to store, organize, produce, or find ESI. All of the preceding characteristics of ESI work against the ability of the ESI custodian and discoverer to work together to find all relevant information.

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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