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What is ESI?

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Do you ever wonder what is all of the information stored on your computer, voicemail, text, instant messaging, digital images called? The data is called Electronically Stored Information (ESI) and depending on whether you are involved in a divorce, civil or criminal matter, your electronically stored information may be crucial and discoverable.

“Discovery” in the legal world is the process in which information necessary to a civil or criminal action may be identified, preserved, collected, reviewed and potentially used as evidence in court.  The information being gathered could include oral or written materials.  In 2009, California passed legislation to deal with how one party obtains ESI from another party. E-discovery is discovery of information that is stored electronically, such as email, voice-mail, word document, spreadsheets or any social media, including Facebook and Twitter.  During e-discovery, access to all devices on which information may be stored, such as desktop computers (home and work), laptops, tablets, cell phones may be required.

The purpose of the e-Discovery Act is to preserve electronically stored information so that a party to litigation, such as in a divorce, will have access to information which might be in possession of the other party. Attorneys are required under the statute to notify their family law clients that they are under an obligation to preserve all electronic material. Therefore, until your case is settled and you are told otherwise by your attorney, you must not delete any email, text messages or voice-mails.  If you are using any bookkeeping software, such as Quick Books or similar accounting software at home, you cannot delete those files.

If you have a hardware failure where the hard drive stops working, it is important to notify your attorney.  It will be necessary to keep the broken hard drive until you are told you may dispose of it. This also applies to new a cell phone, tablet or laptop. You must keep the old device safe until your case is over. Failure to preserve evidence may lead to severe consequences in a case.   If you have any doubts, don’t delete or throw away. The court can impose penalties on you for what it deems to be the destruction of evidence or potential evidence. This includes making you pay for the recreation of the lost or damaged ESI.