The art of e-discovery

With terminology in the FRCP left vague, companies need to create their own archiving strategy There's a new buzzword and acronym to go with it, and if you haven't heard of ESI (Electronically Stored Information) yet, you'd best get up to speed. ESI is born of changes brought about by the Federal Rules for Civil Procedure (FRCP), which went into effect on Dec. 1, 2006. I've written about FRCP several times, incl

With terminology in the FRCP left vague, companies need to create their own archiving strategy

There's a new buzzword and acronym to go with it, and if you haven't heard of ESI (Electronically Stored Information) yet, you'd best get up to speed.

ESI is born of changes brought about by the Federal Rules for Civil Procedure (FRCP), which went into effect on Dec. 1, 2006. I've written about FRCP several times, including an in-depth article on FRCP preparedness.

The problem is, ESI is more a term of art than a deliberately defined set of rules.

Ralph Losey, an attorney specializing in e-discovery at law firm Akerman Senterfitt, tells me ESI is not defined on purpose in order to cover future technologies that haven't been invented yet.

"We only change these rules every 50 year or so, so they deliberately make things vague," Losey says.

So vague in fact that a judge in Columbia Pictures Industries v. Bunnell ruled that content stored in RAM falls under the definition of ESI and is thus discoverable under FRCP.

When you probe a bit deeper into this case, it turns out the defense tried to get cute, Losey says. The defendant, TorrentSpy, was accused of being part of a conspiracy to allow users in a peer-to-peer network to use its site to find content and then violate copyrights by downloading that content. TorrentSpy did not offer the content, rather they were the search engine used to find it.

To prove its case, the plantiff had to show that TorrentSpy sent users to these sites. To do that the plaintiff wanted the log server information.

"Without the logs you cannot show a conspiracy to violate copyrights," Losey says.

The defense contended that saving the logs could not be done. But TorrentSpy didn’t fool the court. Losey blamed the inexpert expert IT witnesses the defense put on the stand for angering the judge.

"She [the judge] was smarter than everybody in the IT department," Losey told me. The defense made it look like retrieving the logs was impossible, and that simply is not true.

Since Dec. 1, there have been thousands of motions pertaining to e-discovery, so we can expect that definitions of what is and is not discoverable will be determined over time by case law.