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.


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