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Electronically Stored Information (ESI) and Electronic Discovery (E-Discovery)
On December 1, 2006, amendments to the Federal Rules of Civil Procedure concerning the discovery portion of the litigation process went into effect. Similar legislation was previously enacted in many states. Although discovery has included electronic materials for some time, the amendments specifically recognize ESI, or electronically stored information, and E-Discovery, the process by which ESI is exchanged during the early stages of litigation. ESI includes all data contained in electronic format ranging from instant messages, to voice mail, to word processing documents – whether stored on a hard drive, a PDA or a flash drive. Evidence of destruction or failure to produce ESI during E-Discovery can lead to costly penalties, sanctions, and loss of the lawsuit as a whole. To prepare for the potential need to comply with these new rules, the Office of Information Security together with the University Counsel is developing policies and practices for compliance. Policies and practices involve the following:
1. Identify what may constitute relevant ESI
2. Define who is responsible for locating, retrieving, and producing the ESI, and ensure that party is prepared to testify in court as to the institution's policies
3. Preserve, search and analyze ESI
4. Institute a "litigation hold" whereby all potentially relevant information is preserved in its original form