The scope of discovery has expanded recently to include electronically stored information (ESI). This expansion was brought about by amendments to the Federal Rules of Civil Procedure that essentially give ESI equal status with paper documents. The discovery of ESI is referred to as “electronic discovery.”

ESI may fall within five different categories:

1. Active online data (data that is currently stored on your hard drive)
2. Near-line data (data that is on removable media)
3. Data that is stored offline or in archives
4. Data stored on back-up tapes
5. Erased, fragmented or damaged data

Generally, a potential litigant should anticipate that all five different types of data could be subject to production. A court may find that it would be unduly burdensome to produce one or more of those categories of data, however, particularly the last two categories.

ESI may be stored on many different devices that may fall within the custody or control of a potential litigant, its officers, employees or agents. These may include networks, PCs, servers, hard disks, removable media, PDAs or other similar devices. As a result, a potential litigant should take an inventory of such devices and/or appoint an officer or employee who will be responsible for making sure that the ESI that is stored on such devices is preserved in anticipation of litigation.

Since “electronic discovery” is in its infancy, many companies are just becoming aware of its implications and may not be fully prepared for its effect in litigation. Accordingly, the next two blog entries may be helpful to those companies as they prepare for litigation. The first entry addresses the types of documents that must be preserved/produced in litigation in general. The second entry addresses the types of documents that must be preserved/produced in patent litigation cases.