ESI (Electronically Stored Information)
Digital evidence including emails, databases, social media posts, text messages, and metadata. Subject to special discovery rules.
What You Need to Know
ESI encompasses all electronically stored information under Federal Rules of Civil Procedure 26(b)(2), including emails, text messages, social media posts, databases, voicemails, instant messages, and metadata. ESI production requires special consideration of format (native vs. PDF), metadata preservation, privilege screening, and volume management. Federal Rule of Civil Procedure 34(b)(2)(E) allows parties to specify the production format. Courts may limit ESI discovery if the burden or cost outweighs its likely benefit, or if the information is not reasonably accessible due to undue burden or cost per FRCP 26(b)(2)(B).
Put this into practice
Use the step-by-step help to prepare and check your files. Definitions explain the terms; the rules and orders for your matter determine what is required.
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Frequently Asked Questions
What format should ESI be produced in during discovery?
Parties may request production in native format (preserves metadata and functionality), TIFF with load files, or PDF format per Federal Rules of Civil Procedure 34(b)(2)(E). Native format is preferred for databases, spreadsheets with formulas, and emails with threading. If no format is specified, the producing party must produce in the format ordinarily maintained or in a reasonably usable form. Best practice: specify the desired format in document requests and negotiate production format during meet-and-confer discussions per FRCP 26(f). Include requirements for Bates numbering, metadata fields, and searchability.
Do I need to preserve metadata when producing ESI?
Yes, unless the requesting party agrees otherwise or the court orders differently. Federal Rule of Civil Procedure 26(f)(2) requires the parties to discuss preserving discoverable information at their conference, and Rule 26(f)(3)(C) requires the discovery plan to state their views on electronically stored information, including preservation. Metadata includes: author, creation date, modification date, recipient list, file path, and edit history. This data is often critical for authentication and timeline disputes. When converting to PDF, metadata may be lost—document this in your production protocol. Use forensic collection tools or specialized software to preserve metadata. Spoliation of metadata can result in sanctions or adverse inference instructions.
How do courts handle proportionality for large ESI productions?
Under Federal Rule of Civil Procedure 26(b)(1), discovery must be proportional to the needs of the case, considering the importance of the issues at stake, the amount in controversy, the parties' relative access to relevant information, the parties' resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. For massive ESI collections, courts may: limit search terms or custodians, allow sampling before full production, shift costs to the requesting party, or permit two-tier discovery where most relevant sources are searched first. Document burden with declarations showing time and cost estimates.
When It's Used
Often requires forensic preservation and specialized production methods
Example
"Producing all company emails from 2020-2023 containing specific search terms, with metadata intact."
References to check
Related Terms
E-Filing
Electronic submission of legal documents to courts through online portals. Courts' e-filing rules may set file-format and naming requirements — check the court's e-filing rules.
Chain of Custody
Documentation showing who had possession of evidence and when, from collection through presentation at trial.
Metadata
Hidden data embedded in electronic documents showing author, creation date, edit history, and other file properties.
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