The evolution of mobile technology and social media continues to raise new questions about the preservation and discoverability of electronically stored information (ESI). Parties must consider ESI-related evidentiary issues at a case’s inception to effectively manage costs, anticipate potential obstacles, promote risk management, and ensure they locate all relevant ESI.

In today’s technology-driven world, relevant ESI evidence will undoubtedly be in the possession of both parties and non-parties. The diversification of data sources, from cellphones to smart watches, continues to erode the walls between work life and personal life, with non-party employees now controlling more relevant information than ever. However, these issues are so new and rapidly evolving that litigators frequently lack guidance on how to handle this type of non-party discovery, especially the obligations of companies and employees in relation to ESI when the employees are not directly involved in a lawsuit. As the boundaries between work life and personal life continue to blend and diminish, discovery into corporate email alone will no longer suffice.

When Is Non-Party ESI Discoverable?