ESI, or electronically stored information, is a term that refers to certain types of information. The legal definition of ESI is any type of information created, used, and stored electronically that requires a computer or other device for access.
Electronic discovery laws make almost all forms of ESI “discoverable,” which means that the information can be used as evidence during a trial. Police and other legal authorities must follow search and seizure laws when obtaining electronic information from suspects.
In 2006, the Federal Rules of Civil Procedure (FRCP) were revised to include ESI as part of the electronic discovery (E-discovery) process and to accommodate litigation relating to electronic records. According to the FRCP, one party may request documents or electronically stored information — including writings, graphs, charts, photographs, sound recordings, images, and other data compilations stored on any medium.
The receiving party must develop and prepare a response in response to a discovery request for information and data related to a lawsuit subject to the FRCP electronic discovery rules. ESI needs to be managed in a way that privileged information is identified and protected. In addition to storing privileged information in a secure location, it should be indexed for search and retrieval.
When the ESI is lawfully seized, it can be admitted as evidence in court and is known as “electronic evidence.”
Who Does Electronic Discovery?
Attorneys typically handle electronic discovery. Due to things like file encryption and password protection, e-discovery is extremely technical and complex and may require specific expertise. In addition, e-discovery is difficult due to the sheer volume of computer-generated information.
Consequently, more and more lawyers are turning to e-discovery specialists. Many companies now specialize in sifting through mountains of data to find evidence that will be useful at trial.
What Are Some Forms of Electronically Stored Information?
Electronically stored information can take many forms. Examples include:
- E-mails, texts, chats, and instant messages
- Video, audio, and image files
- Word processing and spreadsheet files
- Website activity and history
- The information posted on a social networking websites
- Voice mails and video mail
- Computer programming information
The information obtained from cell phones or smartphones can also be used as evidence in a criminal court. Moreover, as technology advances and new forms of ESI are created, criminal laws are likely to adapt to encompass new devices.
What if I Don’t Want my ESI to be Used in a Criminal Trial?
According to criminal procedure rules, almost all forms of ESI can be used as evidence. Nonetheless, there are certain instances in which electronically stored information cannot be used as evidence in court.
In criminal trials, ESI cannot be used as evidence in these scenarios:
- Privileged Communications: Certain types of communications between certain parties are considered “privileged” and should be kept confidential. These may include the attorney-client privilege, the doctor-patient privilege, and the marital communications privilege.
- Illegal search or seizure: ESI that the police have illegally seized must be excluded from evidence in a trial. The police could not use ESI if they did not obtain a valid warrant before obtaining emails.
- Transient communications: Some laws are unclear regarding the discovery status of transient information. Any type of ESI that has been erased from a hard drive but is being temporarily stored somewhere else is considered transient information. An example of this is an e-mail that was deleted from a computer but is being stored in the records of the internet company.
You may wish to speak with an attorney for advice if you feel your ESI should not be used in court. ESI laws can vary from state to state and depending on the nature of the information.
Growth of Digital Technology and ESI Law
As technology and data are growing and being used increasingly, eDiscovery has become a significant and evolving challenge associated with modern-day law. The process of eDiscovery is occasionally handled by eDiscovery software programs but may also include services for identifying, collecting, producing, and preserving relevant digital files and data.
If the right systems and processes are not in place, attorneys could spend tremendous time handling eDiscovery responsibilities, even with a paralegal. With emails, digital files, text messages, and other new types of ESI, lawyers will have their hands full.
Each phase of the eDiscovery process is important, so atto
The way electronic information is collected is also crucial. A concrete audit trail must accompany any data storage, collection, or preservation efforts. If anyone questions the integrity of the ESI or the manner in which it was collected, there will be an unimpeachable account of all information collection activity.
EDiscovery can be a time-consuming and complex process from beginning to end. It’s an essential component of any legal case, often determining how a lawsuit or trial will unfold and which side will be the most persuasive.
Must All Electronically Stored Information Be Shared?
Any information that can be stored on a computer or online may be subject to the criminal discovery process. In addition, information stored on a smartphone or cell phone is also subject to e-discovery laws.
Social network websites produce electronic information of particular concern. People often post personal information on such websites, such as their travels, whereabouts, etc. This information can sometimes damage a defendant’s case in a court of law.
When Must Electronically Stored Information be Produced?
A court will require all electronically stored documents to be turned over to the prosecution or opposing party based on an agreed-upon specification during the discovery process. Usually, both parties agree on the production of this information to be uploaded onto a document review platform that is provided to each party.
Can the Police Search my Email Without a Warrant?
All search and seizure protections may apply depending on the circumstances surrounding the criminal investigation. In order to obtain ESI, for example, the police usually need a valid search warrant.
The Supreme Court has further emphasized the importance of obtaining a warrant before obtaining electronic data. The police must have reasonable suspicion that the ESI is somehow related to criminal activity. Any ESI seized without a warrant will be excluded from evidence during the trial.
Additionally, e-discovery laws in criminal cases differ from those in civil cases. It is possible for an employee who works for a corporation to have their emails seized against their will by their employer. Police officers in criminal cases are generally protected by constitutional search and seizure rights. Private actors, like employers, who seize company information usually aren’t subject to them.
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. ESI can be investigated regardless of whether you are a defendant, witness, or otherwise involved in a criminal case. You can get advice regarding the confidentiality of your electronically stored information from an experienced criminal lawyer.
Do not let your electronically stored information be used against you without a proper search warrant. Use LegalMatch to find the right business attorney for your electronically stored information issues today.