The NZ E-Discovery Blog  Facilitating proportionate and efficient e-discovery

Documents or should it be ESI ?

June 15th, 2016

In today’s’ digital world many of us still refer to information that is mostly electronic as simply documents – and I can be as guilty as any !

The use of the term document can be familiar and comfortable. Much the same way traditional methods of addressing eDiscovery can be hard to shift.

Even though Court rules defines a document as including all ESI (electronically stored information), many courts and lawyers still frequently refer to documents and with it a paper context. We have probably all witnessed the printed paper analogy – equating to XXXXX pages if we printed it.

The concern is we can lose sight of where and in what format other evidence may reside.

Advances in technology have changed how we now interact and communicate with one another.  Many pieces of key evidence are now found in non-traditional electronic information. Social media in all its forms, Snapchat, WhatsApp, Twitter, text messaging, instant messaging, chat rooms, together with cloud based services, and now wearable technologies are also recording data that may potentially hold key evidence.

All when many may still be grappling with email and spreadsheets !

Most of us have progressed from the traditional manual methods of approaching discovery by leveraging technology to improve efficiency and reduce cost. The notion of the traditional document may also need to evolve.

No doubt the references to ‘documents’ will still be prevalent for many, but if we do insist on the term, it is important to appreciate that the term ‘document’ also encapsulates all forms of electronic information.

There can be a fine balancing act between ensuring lawyers and their clients appreciate the task, and often the complexities involved, but in doing so not to over complicate the process for them. Que, lawyers seeking specialist advice and expertise when required !

If they still want to use the term ‘document’ then so be it !



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