Witte and Portinga 2007 (†439)Witte, Derek S., and D. Andrew Portinga. "E-Discovery and the New Federal Rules of Civil Procedure." Michigan Bar Journal (March 2007), p. 36-40.
- electronically stored information (p. 37-38): For more than a decade, most people and corporations have been communicating by e-mail, saving documents in electronic format, and generally operating in an electronic work environment. The rise of ESI has created several challenges for attorneys and clients involved in litigation. The first challenge is that there is now much more information to review and potentially produce as part of discovery. . . . ¶A second challenge is that ESI may be stored in myriad places. Electronic information can be stored not only on central servers and backup tapes, but also on each individual employee’s hard drive. Additionally, a client’s electronic information can be stored on individual laptops, BlackBerry devices, “smart” phones, or other PDAs (personal digital assistants). . . . ¶A third challenge is that ESI contains “hidden” data, or metadata. Metadata is “data about data,” and it may include, for example, information about who made what changes to a document and when the changes were made. This metadata is not seen when a document is printed, and therefore, producing an electronically stored document in paper form may omit some potentially responsive information. . . . ¶Amended Rule 34(a) adds a new category of discoverable information – electronically stored information – and includes within the definition of discoverable documents and ESI “writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations stored in any medium from which information can be obtained. . . .” (Emphasis added.) The definition that includes ESI is broader than the prior definition of “document” in Rule 34 and should encompass all electronically stored information. The definition of ESI is intentionally broad–it encompasses data stored in any medium–to cover new technologies that may develop. (†576)