Electronically Stored Information, or “ESI”, is a term referring to certain types of information.  The legal definition of ESI is any type of information that is created, used, and stored in digital form, and requires a computer or other device for access.     

Electronic discovery laws make basically all forms of ESI “discoverable”, which means that the information can be used as evidence during trial.  Of course, police and other legal authorities must follow search and seizure regulations when obtaining electronically stored information from a suspect. 

If the ESI is lawfully seized, it can be admitted as evidence in court and is known as “electronic evidence”.

What are Some Forms of Electronically Stored Information?

Electronically Stored Information can come in a wide range of forms.  Some common types of ESI include:

  • E-mails, texts, chats, and instant messages
  • Video, audio, and image files
  • Word processing and spreadsheet files
  • Website activity and history
  • Information posted on a social networking websites
  • Voice mails and video mail
  • Computer programming information

Information obtained from cell phones or smart phones can also be used as evidence in a criminal court of law.  Furthermore, as technology advances and new forms of ESI are created, criminal laws will likely adapt to include new devices. 

What if I Don’t Want my ESI to be used in a Criminal Trial?

As mentioned, according to criminal procedure rules, basically all forms of ESI can be used as evidence.  However, there are certain instances where electronically stored information cannot be used as evidence in court. 

Circumstances where ESI may NOT be used as evidence in a criminal trial include:

  • Privileged Communications:  Communications between certain parties who share a specific type of relationship are considered “privileged” and must be kept confidential.  These may include the attorney-client privilege, the doctor-patient privilege, and the marriage communications privilege. 
  • Illegal search or seizure:  ESI that has been illegally seized by the police must be excluded from evidence in trial.  For example, if the police failed to secure a valid warrant before obtaining e-mails, the ESI cannot be used in court
  • Transient communications:  Some laws are unclear regarding the discovery status of transient information.  Transient information is any type of ESI that has been erased from a hard drive but is being temporarily stored elsewhere.  An example of this is an e-mail that was deleted from a computer but is being stored by the internet company in their records. 

If you feel that your ESI should not be used in court, you may wish to speak with an attorney for advice.  The ESI laws can vary from state to state and may be different depending on the nature of the information. 

Should I Talk to a Lawyer if I have Questions about Electronically Stored Information?

You may wish to contact a business attorney if you have any issues at all regarding electronically stored information.  Whether you are a defendant, witness, or are otherwise involved in a criminal case, it is possible for your ESI to be subject to investigation.  An experienced criminal lawyer will be able to give you advice regarding the confidentiality of your electronically stored information.