Nicholas A. Duston and Olivia J. Italiano: E-Discovery: Modernizing a Practitioner’s Approach in a Post-Pandemic Social Media Era

Extract from Nicholas A. Duston and Olivia J. Italiano’s article “E-Discovery: Modernizing a Practitioner’s Approach in a Post-Pandemic Social Media Era”

For the past two decades, electronically stored information, commonly known as ESI, has been widely understood to mean requests for another party’s emails during discovery. However, in today’s post COVID-19 era, there is a significant fracturing of the way individuals communicate. Practitioners should be aware of additional media channels and communication options when requesting ESI. As soon as litigation is anticipated, counsel should determine both whether relevant ESI may be found in these alternative media, and the accessibility of this information.

New Jersey Court Rule 4:18-1 governs the production of ESI. ESI does not include merely emails, but any data or documents created or stored on electronic media, and types of ESI are often used as electronic evidence in litigation. Rule 4.18-1(b)(1), like Fed.R.Civ.P. 34(b)(1)(C), allows a party to specify the form or forms in which ESI is to be produced when requesting discovery. Practitioners in 2022 and beyond should look to all the various sources of discovery that fit the definition of ESI.

Social Media, BYOD, and Where to Look for Documents

In today’s social media and digital communications era, and even long before the COVID-19 global pandemic, many people used online electronic platforms to communicate in the workplace and in their personal lives. These include Microsoft Teams, Slack, WhatsApp, Hangouts/Google Chat, Discord, Messenger, and Skype, among other platforms that allow more instantaneous, back-and-forth communications and conversations. But during COVID-19, these interactive platforms emerged as the primary method of professional and personal communication.

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