Digital (electronic) data is stored in a variety of places: an organization’s servers, individual desktops backup tapes, employees’ home computers, PDA's, the list goes on… Electronic data may also exist in forms that are relatively inaccessible, such as deleted or fragmented data. Whether a particular potential source of electronic data should be reviewed for production will depend on the nature of the matter, the nature of the source, and the nature of the data that may reasonably be expected to be found.

Regardless of its purpose, communication, work-product, drafts, official or unoffical documents, if information (paper or electronic) exists, and is relevant to the legal action at hand, its discoverable.

While the discovery process essentially remains unchanged, the media (ESI) is complex. The significant differences of ESI include location, form and persistence. Where discoverable paper documents were usually stored in a few identifiable locations, one standard form, and once destroyed are lost. Today’s electronic data can literally reside globally, documents are easier to copy, alter and destroy, and even though documents can be deleted, restoration can usually be accomplished by various methods and technologies.

Electronically stored information preservation obligations are no different than paper documents. Generally, an organization has a duty to preserve relevant data once a legal action is reasonably anticipated. Defining “reasonable anticipated” is a topic still disputed in the courts, however, the dynamic nature of electronic evidence makes a rapid and diligent response imperative. Improper preservation of documents often results detrimental results including: fines, adverse inference jury instructions, or default judgments.