Electronically Stored Information (“ESI”) is simply digital data that has been created and communicated. The focus in litigation has pivoted along with the shift in the nature of ESI from emails and basic text to things like audio or video recordings, text messages, and social media. Difficulties arise for companies trying to comply with litigation hold requirements because information can now be hidden intentionally or unintentionally due to the complexity of the volume of information. Coupled with this complexity of data, the rules of the game have recently changed which have enhanced penalties for companies failing to comply in preserving the ESI. Here are 3 issues to consider when evaluating the obligations under the changing landscape:
I’ve got so much to do, I don’t have time to sit down and be sad.”—Norma McCorvey
Technology exists to reduce the overall data once it is collected. The emerging issue in litigation under the rule changes is the proper way to reduce such data. Sometimes paying less up front can turn to more legal fees in defense of decisions made in such reductions. Accordingly, here are some things to think about when trying to limit the scope of data:
“In three words I can sum up everything I’ve learned about life: it goes on.”—Robert Frost
Instead of three words, what about summing it up with one symbolic representation of emotion? It used to just be a simple smiley face “:)” or a heart “<3” sent on early computer systems—and now the sharing of human emotion is exponentially more complicated each passing year through the addition of even more images, like a surprised cat (🙀), or a primate covering its eyes (🙈). Emojis are the new language of our culture, almost everyone uses them. While they have become prolific, consider the following in the context of defending legal proceedings:
This is one of the many emerging decisions interpreting emojis in the context of high stakes litigation. When unsure of whether to use an emoji, the best approach may be to think about whether you want to be on the stand testifying about what you meant by the image and what you think the image means. Certainly something to think about the next time you want to send
“We can put that check in a money market mutual fund, then we’ll re-invest the earnings into foreign currency accounts with compounding interest aaaand it’s gone.”
—Bank Clerk to Stan Marsh, South Park (2009)
Like Stan’s hundred-dollar check, the content sent by social media may disappear into the ether. The first thing that likely comes to mind when thinking of content that disappears after you get it is Snapchat. With the application, photos and videos are not saved (locally), and disappear after a few seconds after the receiver opens the photo. Competitors of Snapchat include Cyber Dust and Confide.
About the Author
Dan Spicer is a third-year law student at Mitchell|Hamline School of Law in St. Paul, Minnesota. He is currently an extern at Loop Legal in Minneapolis—a business boutique. Dan has experience in arbitration, intellectual property, and legal research/writing through his current work at National Arbitration Forum.