All businesses deal with Electronically Stored Information (ESI). It consists of documents that are kept in a paperless, rather than a paper, format. Therefore, it can consist of, well, nearly anything such as bills, receipts, contracts, correspondence, orders, internal memos (e-mails), payroll records, tax records, and so on. For various reasons, you may be required to reproduce and share information. The requirement may come from a customer, the IRS or, someone who is suing you. It is the latter circumstance that has made ESI so prominent.

Regardless of what a lawsuit may be about, each party to the suit has rights of discovery, a right to see the information held by the other party that is considered relevant to the dispute. Typically, the information may be for an extended period, such as months or even years. The parameters that control the discovery process are found in legal rules called the Federal Rules of Civil Procedure (FRCP).

As recently as a few years ago, the discovery process handled electronically stored data along the same lines as traditionally stored data. However, it quickly became obvious that electronic or digital data is a far more complex creature than non-digital data. Therefore, rather than relying on regular discovery rules, new and separate rules are evolving on E-discovery and are radically different.

Electronic communication has taken the place of various other modes of contact. By the very nature of computers, this information never, truly, is ever destroyed. Even when information is "deleted," the only change is that its access has been moved from an active to an inactive access status. This is much like the case of a library book having its catalog card destroyed, but the book is not taken off the shelf. It can't be looked up in a regular manner, but it can be found if one knows where to look.

Requests for information during litigation have created issues that were never contemplated by the non-digital information world. In the past, an entity that had a document handling/retention/destruction system could manage (and explain) what happened with its information. No legal consequence was likely if paper information that seemed routine was destroyed after, say, five to ten years of storage. However, digital information can become inaccessible but not destroyed.

Businesses routinely back-up data and store it on tapes or other media. Computers themselves replicate and keep many copies of information, storing it randomly according to its software programming. However, older data may become extremely difficult to access or analyze because of obsolescence of software and changes and upgrades to software and hardware.

A defendant to a lawsuit may be found liable for producing information yet while having the information in backups, they may be unable to actually provide the data or provide it in a meaningful form. Now requests for data may be under increasing control of judges who may be responsible for making technologically-laden decisions on how data searches are to be performed and on the parameters of such searches.

Businesses may have to totally reconsider their procedures on handling and storing their information. This becomes a daunting task considering the unprecedented volume in which electronic data is created. A driving element regarding ESI is directly related to legal ramifications.

However, as conditions and requirements are shaped in the courts, information and a business' responsibilities can no longer be considered normal or mundane. Please see parts one and three of this article for more information.

While businesses have many reasons that affect how they handle their data and records, there is no arguing that other forces greatly impact making decisions regarding this asset. One such force is their vulnerability to being sued. Minimizing harm from legal liability can be critical and aligning procedures to handle records properly is key.

The court room has long acted as a guide in how businesses create operating procedures with paper records and it plays the same role with ESI. One tool of litigation that may be particularly useful is the Electronic Discovery Reference Model (EDRM).

EDRM describes several components that help parties meet the demands of an efficient discovery process. Handling and storing information via a method that meets the legal obligation of providing full, relevant information in a lawsuit is a solid guide for managing ESI.

Here are the components of the EDRM.

• Information Governance - Concerning the creation, evaluation and storage of ESI.
• Identification - This refers to determining all of a business's sources that generate ESI.
• Preservation - Refers to procedures that protects ESI against unintended modification, loss or destruction.
• Collection - definition?
• Processing - Methods for optimizing ESI to be efficiently reviewed and analyzed.
• Review - Determining whether the ESI made available to others is relevant and does not violate confidentiality.
• Analysis - Properly examining ESI concerning whether it exists in a form that provides sufficient context and content.
• Production - Refers to the ability to share information in the right format and using a correct method of delivery.
• Presentation-The ability to display ESI to others during a legal meeting such as a deposition, a trial, etc. Presentation should be done in a manner that assists a legal objective.