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).
Legal References
- Federal Rules of Civil Procedure 26(b)(2)(B) - Limiting discovery of ESI
- Federal Rules of Civil Procedure 34(b)(2)(E) - Producing ESI in specified formats
- Federal Rules of Civil Procedure 26(f)(3)(C) - Meet and confer on ESI preservation
Relevant Practice Areas
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 Rules of Civil Procedure 26(f)(3)(C) requires parties to discuss preservation of ESI during the initial conference. 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?
Federal Rules of Civil Procedure 26(b)(1) requires discovery to be proportional to the needs of the case, considering: (1) the importance of the issues at stake, (2) the amount in controversy, (3) the parties' relative access to information, (4) the parties' resources, (5) the importance of the discovery, and (6) whether the burden 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."
Legal References
- •Federal Rules of Civil Procedure 26(b)(2)
Related Terms
E-Filing
Electronic submission of legal documents to courts through online portals. Often requires specific file formats and exhibit naming conventions.
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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