State and federal court rules have always provided that a business’s information is discoverable if it is relevant to litigation and not protected by attorney-client privilege.
However, the federal court rules and, more recently, the Michigan court rules, have been amended to recognize the expanding use and importance of electronically stored information (ESI). The rules make it clear now that ESI is discoverable, too.
“The discovery rules used to speak of ‘documents,’ ” says Robert B. Holt Jr., partner with Secrest Wardle. “Now, the Michigan rules include ‘electronically stored information’ of all types.”
Smart Business spoke with Holt about the disclosure of ESI and how to protect your business.
What kinds of documents are classified as discoverable under the amended rules?
The federal rules address discovery of documents or electronically stored information, including such things as writings, drawings, graphs, charts, photographs, sound recordings, images and other data or data compilations, stored in any medium. Both the state and federal rules are broad enough to include discovery from office computer systems, servers, laptops, backup and archive devices, flash drives and even cell phones and smart phones.
The type of information that can be discovered is expanding, mostly because the volume and type of information that businesses create are expanding so dramatically. Information that used to be exchanged in a series of phone calls is now exchanged in a series of e-mails or instant messages, which can live forever. A modest laptop computer can store the information found in a mid-sized library.
What’s more, in addition to the printed information that we can see in an e-mail or word processing document, there is also embedded data, or ‘metadata,’ that can tell us who created the information, and if and when it was modified. This unseen data can be the subject of discovery, too.