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How do you define a "document" today? Do you automatically visualize an 8.5"-by-ll" sheet of paper (or 8.5"-by-14" for us legal folk)? Do you sense the tactile feel of pulverized wood pulp in your hands? The reality is that the paper document you might hold in your hand is only a mere reflection of a "document" because the original file is composed of Is and Os sitting on your computer. The world of information today is digital, which means any paper you're holding has been printed from a digital file ... unless it's a handwritten note, microfiche, or a land deed from the 1800s. This is the whitehot nucleus of e-discovery-the discovery of electronic data.
Until 2006, Rule 34 of the Federal Rules of Civil Procedure (and most analogous state rules) was titled "Producing Documents and Tangible Things." There was no conception of evidence that wasn't physical, palpable, or tangible. There was no mention of electronic or digital files in the Rule, so clever litigants would attempt to argue that emails or spreadsheets were not "documents" or "tangible things" and, therefore, did not need to be produced. In 1971, Rule 34 was amended to include the phrase "data compilations," and the 1970 Notes from the Advisory Committee explained that the "inclusive description of 'documents' is revised to accord with changing technology," so presumably that would have included punch cards, which was the type of "data" compiled at the time.
In the early 2000s, when personal computers and the World Wide Web were becoming mainstream, it became apparent that Rule 34 needed another update. In 1995, the Southern District of New York made a bold statement in Anti-Monopoly, Inc. u Hasbro, Inc. 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y.): "Today it is black letter law that computerized data is discoverable if relevant." But it took until 2006 for Rule 34 to have its title changed to "Producing Documents, Electronically Stored Information, and Tangible Things." That phrase, "Electronically Stored Information," usually shortened to ESI, was purposefully designed to broadly cover all files, documents, and digital data that might need to be collected, reviewed, and produced in litigation. The phrase has withstood the test of time, especially as the original 2006 amendment authors could not have foreseen the developments...