Discovering ESI- Self-Reliance and Rule 26

by Daniel Kegan
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ESI—Electronically Stored Information. FRCivP now requires an early conference among attorneys to discuss and plan discovery, including ESI.

The Internet and ESI makes discovery easier, but also increases the volume of reviewed materials. Discovery costs may be reduced by active research by the party itself. However, uncontrolled lay discovery may create serious liabilities, including making illegally obtained evidence inadmissible. A party in litigation knows its industry and some relevant facts of the case better than its attorney initially will. Active participation in discovery by non-attorneys may more efficiently surface relevant information. Lay discovery needs to be authorized and supervised by an attorney to avoid possible inadmissibility, sanctions, and ethical violations.

Failure to understand how a client maintains ESI opens client and counsel to severe sanctions. Attorneys cannot simply delegate the responsibility of understanding ESI and discovery planning.

An attorney needs to understand not only the client’s information systems—traditional paper and ESI—but also those of the adverse party(ies). Discovery tasks include learning what information the client has, where and how it is maintained, how the discovery-relevant information can be efficiently gathered and transmitted to the attorney, sequentially numbering files and/or pages, how the information will be reviewed for privilege and confidentiality, how responsive discovery information will be produced to adverse counsel, and sufficient parallel questions for the adverse discovery so that reasonable monitoring reduces the opportunity for oversight and intentional abuse.

This article presents an efficient procedure for a small law firm to successfully manage the ESI discovery process. Large firms can also utilize these procedures, although they may feel less economic need. Guidelines are presented for both Macintosh and Windows computers.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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