Challenges of Conducting E-Discovery on Ephemeral Data

“Federal and state discovery rules rarely limit their application to certain types of electronic data. Rather, they apply broadly to all forms of “electronically stored information.” ESI encompasses documents themselves – and information about the documents, the metadata – but also computer code, and information that the computer retains to allow for a better user experience. Increasingly courts are confronted with situations where parties seek access to a computer’s slack or unallocated space; temporary Internet files; metadata that is updated automatically (such as last-opened dates); and other ephemeral data that require extraordinary measures to preserve and collect.”

This article examines two recent cases, one in Tennessee and one in New York, involving the recovery of Internet browser histories. In NY, the appellate court held “that a nonparty can be required to produce data that has been deleted if 1) the information is recoverable, and 2) a cost/benefit analysis of the facts concludes that the needs of the case warrants retrieval of the data. Tener, 931 N.Y.S.2d at 554-57.”