Managing Discovery of 

Electronic Information:

A Pocket Guide for Judges

Barbara J. Rothstein, Ronald J. Hedges, and 

Elizabeth C. Wiggins

Federal Judicial Center

2007

This Federal Judicial Center publication was undertaken in furtherance 

of the Center’s statutory mission to develop and conduct education programs for judicial branch employees. The views expressed are those of the 

authors and not necessarily those of the Federal Judicial Center.
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iii

Contents

Preface, v

Introduction, 1

What Is Electronically Stored Information and How Does It Differ 

from Conventional Information? 2

Early Consideration of ESI—Rules 26(f) and 16, 4

ESI and Rule 26(a)(1) Disclosures, 5

ESI and Scope of Discovery Under Rules 26(b)(1) and 26(b)(2), 6

Allocation of Costs, 10

Discovery from Nonparties, 12

Form of Production, 13

Waiver of Privilege or Work-Product Protection, 14

Preservation of ESI, 16

Spoliation and Sanctions, 18

Conclusion, 20

Glossary, 22
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Preface

This pocket guide is designed to help federal judges manage the 

discovery of electronically stored information (ESI). It encourages 

judges to actively manage those cases involving ESI, raising points 

for consideration by the parties rather than awaiting the parties’ 

identification and argument of the matters. The guide covers issues 

unique to the discovery of ESI, including its scope, the allocation 

of costs, the form of production, the waiver of privilege and workproduct protection, and the preservation of data and spoliation. As 

you are reading, you may encounter some unfamiliar terms. Many 

of these terms are defined in a glossary at the end of the guide. A 

note of appreciation goes to Judge Lee H. Rosenthal (S.D. Tex.), Ken 

Withers (the Sedona Conference), and John Rabiej (Administrative 

Office of the U.S. Courts) for their suggestions, which improved 

this publication. I hope you find the guide useful in meeting the 

challenges presented by the discovery of ESI.

 Barbara Jacobs Rothstein

Director, Federal Judicial Center
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Introduction

It is a fact of modern life that an enormous volume of information is 

created, exchanged, and stored electronically. Conventional documents originate as computer files, e-mail is taking the place of both 

telephone calls and postal letters, and many, if not most, commercial activities are transacted using computer-based business processes. Electronically stored information (ESI) is commonplace in 

our personal lives and in the operation of businesses, public entities, and private organizations.

In the past decade, discovery involving word-processed documents, spreadsheets, e-mail, and other electronically stored information has become more routine: Once seen only in large cases 

involving sophisticated entities, it is now seen in routine civil cases 

and in many criminal cases. In some cases, ESI does not raise any 

issue, or it is converted to paper and is exchanged in the traditional 

manner. In other cases, disputes arise as to the scope of discovery, 

the form in which ESI is produced, whether inadvertent production 

of ESI will lead to waiver of attorney–client privilege or work-product protection, the shifting of costs from producing to requesting 

parties, and the preservation of ESI and related spoliation allegations. For example, in some cases a dispute may surface when one 

party finds that digital files have been delivered in a format that is 

not readily usable. In other cases, technology issues may remain 

submerged until later in the pretrial process when one side accuses the other of spoliation because routine digital file management 

practices remained in place after the complaint was filed, resulting 

in the deletion of computer files. 

The court may minimize such disputes by encouraging lawyers 

and parties to identify, in the earliest stages of litigation, potential 

problems in the discovery of ESI and possible resolutions to those 

problems, and by intervening before misunderstandings and disputes lead to significant delay and costs. Case law addressing conventional discovery and ESI-related discovery, the Federal Rules 

of Civil Procedure, local rules,1 the Manual for Complex Litigation, 

 1. See, e.g., U.S. Dist. Ct. Rules E.D. & W.D. Ark., L. R. 26.1; U.S. Dist. Ct. Rules 

D.N.J., L. Civ. R. 26.1; U.S. Dist. Ct. Rules M.D. Pa., L. Civ. R. 26.1; and U.S. Dist. 

Ct. Rules D. Wyo., L. Civ. R. 26.1, App. D. See also Ad Hoc Committee for Electronic Discovery of the United States District Court for the District of Delaware, 

Default Standard for Discovery of Electronic Documents (http://www.ded.uscourts.

gov/OrdersMain.htm); U.S. District Court for the District of Kansas, Guidelines for 
Managing Discovery of Electronic Information



Fourth, and various legal publications offer management tools for 

the judge’s use.2 Amendments to the Federal Rules of Civil Procedure that specifically address the discovery of ESI went into effect 

December 1, 2006.3

Discovery involving ESI may require more intensive judicial involvement than required by conventional discovery. The purpose 

of this guide is to identify problems that recur during the course 

of electronic discovery and to present management tools for responding to them.

What Is Electronically Stored Information 

and How Does It Differ from 

Conventional Information? 

Among others things, ESI includes e-mails, webpages, word processing files, and databases stored in the memory of computers, 

magnetic disks (such as computer hard drives and floppy disks), 

optical disks (such as DVDs and CDs), and flash memory (such as 

“thumb” or “flash” drives). Federal Rules of Civil Procedure 26 and 

34, which went into effect December 1, 2006, use the term “electronically stored information” rather than the term “data compilation” and identify it as a distinctive category of information subject 

to discovery obligations on par with “documents” and “things.”

ESI differs from conventional, paper information in several 

ways. The volume of ESI is almost always exponentially greater 

than paper information, and it may be located in multiple places. 

For example, draft and final versions of a single paper memorandum may be stored electronically in multiple places (e.g., on the 

computer hard drives of the document’s creator, reviewers, and recipients; on the company server; on laptops and home computers; 

the Discovery of Electronically Stored Information (http://www.ksd.uscourts.gov/

guidelines/electronicdiscoveryguidelines.pdf).

 2. See also American Bar Association, Civil Discovery Standards 57–76 (2004) 

(Standards 29–33) (at http://www.abanet.org/litigation/discoverystandards/); The 

Sedona Principles: Best Practices, Recommendations & Principles for Addressing

Electronic Document Discovery (Sedona Conference Working Group Series 

Jan. 2004) [hereinafter The Sedona Principles] (updated version available at

http://www.thesedonaconference.org/content/miscFiles/publications_html).

 3. These rules can be found at http://www.uscourts.gov/rules/index.html.
Managing Discovery of Electronic Information



and on backup tapes). Market research tells us that the average 

employee sends or receives about 50 messages per working day,4

which translates into more than 1,200,000 messages a year for an 

organization of 100 employees.

Also, although the possibility that paper documents may be 

damaged, altered, or destroyed has always been a concern, the dynamic, mutable nature of ESI presents new challenges. For example, 

computer systems automatically recycle and reuse memory space, 

altering potentially relevant information without any specific direction or even knowledge of the operator. Merely opening a digital file 

changes information about that file. 

Some aspects of ESI have no counterpart in print media, metadata being the most obvious. Metadata, which most computer users never see, provide information about 

an electronic file, such as the date it was 

created, its author, when and by whom it 

was edited, what edits were made, and, in 

the case of e-mail, the history of its transmission. Also, some computer-based transactions do not result in a conventional 

document, but instead are represented in 

integrated databases. Even less-complex 

ESI may be incomprehensible and unusable 

when separated from the system that created it. For example, a spreadsheet produced in portable document 

format (PDF) may be useless because embedded information, such 

as computational formulas, cannot be seen or discerned. Finally, 

deleting an electronic document does not get rid of it, as shredding 

a paper document would. An electronic document may be recovered from the hard drive, to the extent it has not been overwritten, 

and may be available on the computers of other people and on 

archival media or backup tapes used for disaster recovery rather 

than archival purposes. 

These differences between ESI and conventional information 

have important implications for discovery. For example, the dynamic nature of ESI makes it vital that a data producer institute “lit-

 4. Microsoft, Survey Finds Workers Average Only Three Productive Days Per 

Week (Mar. 15, 2005) <http://www.microsoft.com/presspass/press/2005/mar05/

03-15ThreeProductiveDaysPr.mspx> (visited Jan. 3, 2007) (U.S. workers reported 

they receive an average of 56 e-mail messages per day).

How ESI differs from paper 

information:

Volume

Variety of sources

Dynamic quality 

Hidden information: metadata 

and embedded data

Dependent on system that 

created it

Deleting doesn’t delete it
Managing Discovery of Electronic Information



igation holds” to preserve information that may be discoverable, 

often even before the lawsuit is filed. Moreover, the volume and 

multiple sources of ESI may lead to disputes about the scope of discovery and may make review to identify and segregate privileged 

information more difficult, increasing the likelihood of its inadvertent production even when the producing party has taken steps to 

avoid it. In addition, because deleted or backup information may 

be available, parties may request its production, even though restoring, retrieving, and producing it may require expensive and 

burdensome computer forensic work that is out of proportion to 

the reasonable discovery needs of the requesting party.

Early Consideration of ESI—Rules 26(f) and 16

Exchanging information in electronic form has significant benefits—

it can substantially reduce copying, transport, and storage costs; 

enable the requesting party to more easily review, organize, and 

manage information; facilitate the use of computerized litigation 

support systems; and set the stage for the use of digital evidence 

presentation systems during pretrial and trial proceedings. To ensure that these benefits are achieved and any problems associated 

with ESI are minimized, attorneys and parties should address ESI in 

the earliest stages of litigation, and judges should encourage them 

to do so.

All too often, attorneys view their obligation to “meet and confer” under Federal Rule of Civil Procedure 26(f) as a perfunctory exercise. When ESI is involved, judges should insist that a meaningful 

Rule 26(f) conference take place and that a meaningful discovery 

plan be submitted. Amended Rule 26(f) directs parties to discuss 

any issues relating to disclosure or discovery of ESI, including the 

form or forms in which it should be produced. More specifically, the 

parties should inquire into whether there will be discovery of ESI at 

all; what information each party has in electronic form and where 

that information resides; whether the information to be discovered 

has been deleted or is available only on backup tapes or legacy 

systems; the anticipated schedule for production and the format 

and media of that production; the difficulty and cost of producing 
Managing Discovery of Electronic Information



the information and reallocation of costs, if appropriate; and the 

responsibilities of each party to preserve ESI.5

Amended Rule 26(f) also directs parties to discuss issues related to claims of privilege or protection as trial-preparation material. If the parties agree on a procedure to 

assert such claims after production, they 

should discuss whether to ask the court 

to include their agreement in an order.

(See related discussion, infra page 14.)

For the “meet and confer” process to 

be effective, attorneys must be familiar 

with how their clients use computers on 

a daily basis and understand what information is available, how routine computer operations may change it, and what is 

entailed in producing it. Attorneys need 

to identify those persons who are most knowledgeable about the 

client’s computer system and meet with them well in advance of 

the Rule 26 conference; it may also be advisable to have those persons present at the conference.

The Rule 16 conference and order afford the court the opportunity, early in the case, to discuss and memorialize the agreements or shared understandings that parties reach in their “meet 

and confer” session, and to resolve disputes that may have arisen. 

Amended Rule 16(b) provides that scheduling orders may include 

provisions for disclosure or discovery of ESI and any agreements 

the parties reach for asserting claims of privilege or of protection 

as trial-preparation material after production.

ESI and Rule 26(a)(1) Disclosures 

Rule 26(a)(1) requires disclosure of the identities of individuals 

likely to have discoverable information, as well as “a copy of, or a 

description by category and location of, all documents, data compilations, and tangible things” that the disclosing party may use 

 5. Specific topics for discussion related to the preservation of information are 

listed in the Manual for Complex Litigation, Fourth § 40.25(2) (Federal Judicial Center 

2004) [hereinafter MCL 4th].

Discussion topics for a 

Rule 26(f) conference: 

What ESI is available and 

where it resides

Ease/difficulty and cost of 

producing information

Schedule and format of 

production

Preservation of information

Agreements about privilege or 

work-product protection
Managing Discovery of Electronic Information



to support its claims or defenses, unless solely for impeachment. 

Effective December 1, 2006, the term “data compilations” was 

changed to “electronically stored information,” clarifying a party’s 

duty to include ESI in its disclosures. Automatic disclosures must 

be made “at or within 14 days after the Rule 26(f) conference unless 

a different time is set by stipulation or court order.”

The Manual for Complex Litigation, Fourth emphasizes that the 

parties have a duty to conduct a reasonable investigation pursuant 

to disclosure, particularly when a party possesses extensive computerized data, which may be subject to disclosure or later identification.6

 This task may be daunting for a party with voluminous ESI 

to identify, especially if that information is not readily accessible. 

With respect to less-accessible ESI, Moore’s Federal Practice suggests that the following disclosures and investigation should satisfy the basic requirements of Rule 26(a)(1):

The disclosing party should identify the nature of its 

computer system—including back-up system, network 

system, and e-mail system—as well as any software applications used to operate those systems. However, the 

disclosing party should not be required to attempt to 

search back-up systems or to retrieve deleted files in an 

exhaustive effort to locate all potentially relevant evidence as part of this initial disclosure obligation. Further, 

a party should not be held liable for sanctions or other 

penalties for failing to disclose this evidence as part of 

its initial disclosure obligation, even when that evidence 

is subsequently used in the litigation. The difficulty in 

retrieving this information provides “substantial justification” to excuse such an exhaustive search effort.7

ESI and Scope of Discovery Under 

Rules 26(b)(1) and 26(b)(2) 

The central issue in almost all discovery management is the determination of scope. Under Rule 26(b)(1), parties may obtain discovery relevant to the “claim or defense of any party” that is not privi-

 6. MCL 4th, supra note 5, § 11.13.

 7. J.M. Moore, Moore’s Federal Practice § 37A.21[1] (3d ed. 2005) (footnote 

omitted).
Managing Discovery of Electronic Information



leged or protected as trial preparation material. In addition, the 

court may order discovery of information relevant to the “subject 

matter involved in the action” for “good cause.” Under either standard, the principles of proportionality set out in Rule 26(b)(2)(C) 

apply.8 Rule 26(b)(2)(C) provides:

The frequency or extent of use of the discovery methods otherwise permitted under these rules and by any 

local rule shall be limited by the court if it determines 

that: (i) the discovery sought is unreasonably cumulative or duplicative, or is obtainable from some other 

source that is more convenient, less burdensome, or 

less expensive; (ii) the party seeking discovery has had 

ample opportunity by discovery in the action to obtain 

the information sought; or (iii) the burden or expense 

of the proposed discovery outweighs its likely benefit, 

taking into account the needs of the case, the amount 

in controversy, the parties’ resources, the importance of 

the issues at stake in the litigation, and the importance 

of the proposed discovery in resolving the issues. The 

court may act upon its own initiative after reasonable 

notice or pursuant to a motion under Rule 26(c).

In the context of ESI, whether the proportionality analysis of 

Rule 26(b)(2)(C) is satisfied often turns on the type of computer 

data being sought. Assuming the requested information is relevant 

to the claims or defenses or the subject matter of the dispute and 

is not subject to a claim of privilege or protection, the production 

of active data, available to the responding party in the ordinary 

course of business, is most likely to satisfy the proportionality 

test. Active electronic records are generally those currently being 

created, received, or processed, or that need to be accessed frequently and quickly. Systems data, which include such things as 

when people logged on and off a computer or network, the applications and passwords they used, and what websites they visited, 

may be more remote and more costly to produce. Other types of 

data are even more removed from what is available in the ordinary 

course of business and may involve substantial costs and time and 

active intervention of computer specialists. These types of data include offline archival media, backup tapes designed for restoring 

computer systems in the event of disaster, deleted files, and legacy 

 8. Prior to December 1, 2006, Rule 26(b)(2)(C) was Rule 26(b)(2).
Managing Discovery of Electronic Information



data, which were created on now-obsolete computer systems with 

obsolete operating and computer software.9 Even active data may 

involve substantial burdens to produce—for example, when vast 

amounts are requested or when data are requested in a form that 

requires the reprogramming of databases. When hard-to-access 

information is of potential interest, the court should encourage 

lawyers to negotiate a two-tiered approach in which they first sort 

through the information that can be provided from easily accessed 

sources and then determine whether it is necessary to search the 

less-accessible sources. 

Rule 26(b)(2)(B) and the accompanying Committee Note embrace this two-tiered approach. The rule establishes the following 

procedure for the discovery of not reasonably accessible ESI: 

(B) A party need not provide discovery of electronically 

stored information from sources that the party identifies 

as not reasonably accessible because of undue burden 

or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought 

must show that the information is not reasonably accessible because of undue burden or cost. If that showing is 

made, the court may nonetheless order discovery from 

such sources if the requesting party shows good cause, 

considering the limitations of Rule 26(b)(2)(C). The court 

may specify conditions for the discovery.

The requesting party may need discovery to test the assertion 

that the information is not reasonably accessible. Such discovery 

may involve taking depositions of those knowledgeable about the 

responding party’s information systems; some form of inspection 

of the data sources; and requiring the responding party to conduct 

a sampling of information contained on the sources identified as 

not reasonably accessible. Sampling of the less-accessible source 

can help refine the search parameters and determine the benefits 

and burdens associated with a fuller search.10

 9. See also Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318–19 (S.D.N.Y. 

2003) (describing the media on which ESI is maintained, and distinguishing online, 

active data, nearline data, offline storage/archives, and backup tapes).

10. See McPeek v. Ashcroft, 202 F.R.D. 31 (D.D.C. 2001); McPeek v. Ashcroft, 212 

F.R.D. 33 (D.D.C. 2003); Hagemeyer N. Am., Inc. v. Gateway Data Sciences Corp., 222 

F.R.D. 594 (E.D. Wis. 2004) (all supporting the use of sampling to tailor the scope of 

further discovery).
Managing Discovery of Electronic Information



Even if it is determined that a source of ESI is not reasonably 

accessible, the requesting party may obtain discovery by showing good cause subject to the limitations of Rule 26(b)(2)(C). The 

Committee Note suggests that, in determining whether to allow the 

discovery, the judge consider the following:

(1) the specificity of the discovery request; (2) the 

quantity of information available from other and more 

easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but 

is no longer available on more easily accessed sources; 

(4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and 

usefulness of the further information; (6) the importance 

of the issues at stake in the litigation; and (7) the parties’ 

resources.

In making this determination, the court has a variety of available tools, including

• ordering the parties to examine the information that is 

available from reasonably accessible sources before requiring discovery into sources that are identified as not 

reasonably accessible;

• ensuring that the requesting party makes a specific and tailored discovery request;

• ordering sampling of the sources identified as not reasonably accessible to assess the costs and burdens of production and the likelihood of finding responsive information 

and its usefulness to the litigation;

• ordering limited discovery into the costs and burdens of 

accessing the information from the sources identified as 

not reasonably accessible and into the basis for believing 

that they do, or do not, contain information likely to be 

important to the case and not available from other, accessible sources, such as depositions of the responding party’s 

computer system personnel; and

• ordering the requesting party to pay all or part of the reasonable costs of producing the information from sources 

identified as not reasonably accessible. (See the discussion 

in the next section.) 
Managing Discovery of Electronic Information

10

Allocation of Costs

In cases involving vast amounts of ESI, or ESI that is not available 

from reasonably accessible sources, the cost to the producing 

party in locating the information, reviewing it for privilege, and 

otherwise preparing it for production may be much greater than 

in conventional discovery. At the same time, the cost of copying 

and transporting the information is practically eliminated and the 

cost to the requesting party of searching the information may be 

reduced because it can be done electronically.

In such cases, it may be appropriate to shift at least some of 

the production costs from the producing party to the requesting 

party. Two major cases—Rowe Entertainment, Inc. v. William Morris 

Agency, Inc.11 and Zubulake v. UBS Warburg LLC12—have introduced 

multifactor tests to determine when cost shifting is appropriate.

In Rowe, a racial discrimination case, the defendants objected 

to the production of e-mail information from backup media on the 

grounds that such discovery was unlikely to provide relevant information and would invade the privacy of nonparties, and they 

requested that the plaintiffs bear the costs if production was nevertheless required. The court concluded that the e-mail information 

sought by the plaintiffs was relevant and that a blanket order precluding its discovery was unjustified. However, balancing eight factors derived from case law, the court required the plaintiffs to pay 

for the recovery and production of the e-mail backups, except for 

the cost of screening for relevance and privilege. The eight Rowe

factors were (1) the specificity of the discovery requests; (2) the 

likelihood of discovering critical information; (3) the availability of 

such information from other sources; (4) the purposes for which 

the responding party maintains the requested data; (5) the relative 

benefit to the parties of obtaining the information; (6) the total cost 

associated with production; (7) the relative ability of each party to 

control costs and its incentive to do so; and (8) the resources available to each party.13

Zubulake, a gender discrimination case, also involved the production of e-mails that existed only on backup tapes and other archived media. After concluding that the plaintiff’s request was rel11. 205 F.R.D. 421 (S.D.N.Y.), aff’d, 53 Fed. R. Serv. 3d 296 (S.D.N.Y. 2002).

12. 217 F.R.D. 309 (S.D.N.Y. 2003).

13. Rowe, 205 F.R.D. at 428–29.
Managing Discovery of Electronic Information

11

evant to her claims, the court held that the usual rules of discovery 

generally apply when the data are in accessible format, but that 

cost shifting could be considered when data were relatively inaccessible, such as on backup tapes, and substituted seven factors 

for the Rowe factors. The Zubulake factors, in order of importance, 

were (1) the extent to which the request is specifically tailored to 

discover relevant information; (2) the availability of such information from other sources; (3) the total cost of production, compared 

to the amount in controversy; (4) the total cost of production, compared to the resources available to each party; (5) the relative ability of each party to control costs and its incentive to do so; (6) the 

importance of the issues at stake in the litigation; and (7) the relative benefits to the parties of obtaining the information. The court 

emphasized that the factors should not be applied mechanistically 

and should be weighted according to their importance. 

Other courts have adopted or modified the Rowe and Zubulake

formulations.14 Moreover, the Committee Note to Rule 26(b)(2)(B) 

makes explicit the authority to shift costs when information that is 

not reasonably accessible is being produced.

Zubulake also set forth a sensible approach for assessing costs 

when a large number of backup tapes are involved. Following the 

order in the above case, the defendants restored and reviewed 5 of 

the 77 backup tapes of interest; they found approximately 600 messages deemed to be responsive at a cost of about $19,000. Based 

on this work, the defendants were able to estimate the cost of restoring and reviewing the entire 77-tape collection. Considering 

the seven factors, the court determined that the balance tipped 

14. See Wiginton v. CB Richard Ellis, Inc., 2004 U.S. Dist. LEXIS 15722, *13 (N.D. 

Ill. Aug. 10, 2004) (adds the importance of the requested discovery in resolving the 

issues of the litigation to the Zubulake factors); Multitechnology Servs., L.P. v. Verizon Southwest, 2004 WL 1553480 (N.D. Tex. July 12, 2004) (analyzes application to 

shift costs for “relevant and discoverable” electronic information under Rule 26(c) 

and apparently rejects Zubulake’s applicability and concludes that “requiring the 

parties to evenly shoulder the expense is the most effective resolution because it 

balances the benefit of the discovery . . . and provides . . . [an] incentive to manage 

costs it incurs”; also held that “it is appropriate to classify the expense as court 

costs that can be recovered by the prevailing party”); Hagemeyer N. Am., Inc. v. 

Gateway Data Sciences Corp., 222 F.R.D. 594, 599–603 (E.D. Wis. 2004) (analyzes costshifting tests and concludes that “Zubulake brought the cost-shifting analysis closest to the Rule 26(b)(2) proportionality test” and adopts it).
Managing Discovery of Electronic Information

12

slightly against cost shifting and required the defendants to bear 

75% of the restoration costs.15

Discovery from Nonparties

Discovery from nonparties is likely to be more frequent when the 

parties are seeking ESI than when they are seeking conventional 

paper documents. Many businesses and individuals depend on 

telecommunications companies, Internet service providers, and 

computer network owners for computer services, and these nonparties may be the source for relevant and discoverable ESI, especially e-mail messages. Even larger companies routinely outsource 

their computer-management and data-storage functions to contractors and consultants. Rule 45, effective December 1, 2006, conforms the provisions for subpoenas to other changes in the rules 

related to the discovery of ESI. Parallel to amended Rule 26(b)(2), 

Rule 45 introduces the concept of sources that are not reasonably 

accessible. It also addresses the form for the production of ESI, 

adds a procedure for asserting claims of privilege or of protection 

as trial-preparation materials, and allows for the testing or sampling of ESI. Although Rule 45 has no equivalent to the Rule 26(f) 

“meet and confer” process, parties seeking discovery under Rule 

45 should be encouraged to meet informally with respondents and 

discuss the scope of the subpoena, the desired form of response, 

protection for privileged and protected information, and the allocation of discovery costs.

15. This case is commonly referred to as Zubulake III, 216 F.R.D. 280 (S.D.N.Y 

2003). Zubulake II, 230 F.R.D. 290 (S.D.N.Y. 2003), addressed the plaintiff’s request to 

release a sealed transcript. Zubulake IV, 220 F.R.D. 212 (S.D.N.Y. 2003), addressed the 

plaintiff’s request for sanctions (including an adverse inference instruction) arising 

out of the failure to preserve backup tapes and deletion of isolated e-mails. In ruling 

on the request, the court considered the obligation of a party to preserve digital information. In Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 2004), the court imposed sanctions 

for deleting relevant e-mail. In Zubulake VI, 231 F.R.D. 159 (S.D.N.Y. 2005), the court 

denied a defense motion (brought by new counsel) to assert an affirmative defense. 

In Zubulake VII, 382 F. Supp. 2d 536 (S.D.N.Y. 2005), the court addressed in limine 

motions. On April 6, 2005, a jury awarded the plaintiff $9.1 million in compensatory 

damages and $20.1 million in punitive damages.
Managing Discovery of Electronic Information

13

Form of Production

Electronically stored information can be produced in a variety of 

forms or formats, each with distinctive advantages and disadvantages. The form may have important implications for how easily, if 

at all, the information can be electronically searched, whether relevant information is obscured or sensitive information is revealed, 

and how the information can be used in later stages of the litigation. 

For example, ESI may be produced as a TIFF or PDF file, which is 

essentially a photograph of an electronic document. Alternatively, 

ESI may be produced in “native format,” that is, the form in which 

the information was created and is used in the normal course of 

operations. Part Two of Effective Use of Courtroom Technology16

reviews in depth the various digital formats in which documents, 

photographs, videos, and other materials can be produced and the 

related issues of cost and usability.17 Recent decisions, including 

Hagenbuch v. Sistemi Elettronici Industriali S.R.L.18 and Williams v. 

Sprint/United Management Co.,

19 have addressed the form of production.

Rule 34 was amended to provide a procedure for addressing 

the form of ESI because this issue simply did not arise with respect 

to paper discovery. The rule permits the requesting party to designate the form or forms in which it wants ESI produced, and it requires the responding party to identify the form in which it intends 

to produce the information if the requesting party does not specify 

a form or if the responding party objects to a form that the requesting party specifies. It also requires the parties to meet and confer if 

there is a dispute about form of production and provides that in the 

absence of a party agreement or court order, the responding party 

must produce electronically stored information either in a form or 

16. Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and 

Trial (Federal Judicial Center 2001). 

17. Also see the term file format in the glossary.

18. 2006 WL 665005 (N.D. Ill. Mar. 8, 2006) (holding that production of ESI as 

TIFF images was insufficient and ordering production of ESI in its original format).

19. 230 F.R.D. 640 (D. Kan. 2005) (holding that the production of spreadsheets 

in static format was insufficient because the mathematical formulas, text exceeding 

cell size, and metadata were eliminated, and that the defendant should have preserved and produced the spreadsheets in native format or taken other measures to 

preserve and produce the nonapparent information).
Managing Discovery of Electronic Information

14

forms in which it is ordinarily maintained or in a form or forms that 

are reasonably usable.

In resolving disputes over the form of production, considerations for the court include the following:

• What alternatives are available? What are their benefits 

and drawbacks for the requesting and responding parties?

• If the responding party is not producing information in the 

form in which it is ordinarily maintained, is the party producing it in a form that is reasonably usable to the requesting party? 

• If the requesting party disputes that the proposed form of 

production is reasonably usable, what limits its use? Has 

the responding party stripped features, such as searchability, or metadata or embedded data that may be important? 

If so, what is the justification? 

Waiver of Privilege or 

Work-Product Protection

The volume of ESI searched and produced in response to a discovery request can be enormous, and characteristics of certain types 

of ESI (e.g., embedded data, metadata, threads of e-mail communications and e-mail attachments) make it difficult to review for 

privilege and work-product protection. Thus, the inadvertent disclosure of privileged or protected material during production is a 

substantial risk that persists even if expensive and time-consuming 

steps are taken to identify and segregate it. To facilitate discovery, 

parties have entered into agreements that help minimize the risk 

of waiver. Under what is commonly called a “quick peek” agreement, the responding party provides requested material without 

a thorough review for privilege or protection, but with the explicit 

understanding that its production does not waive any privilege or 

protection. The requesting party then designates via Rule 34 the 

specific documents it would like produced. The responding party 

then has the opportunity to review the documents that have been 

specifically requested and withhold those that are privileged or 

protected. Alternatively, under “claw back” agreements, the parties typically review the material for privilege or protection before 
Managing Discovery of Electronic Information

15

it is produced but agree to a procedure for the return of privileged 

or protected information that is inadvertently produced within a 

reasonable time of its discovery.

Amended Rule 26(f) encourages parties to discuss whether 

they can agree on these or similar arrangements, recognizing the 

increased likelihood of inadvertent production of privileged or protected information and the commensurately increased cost and 

delay required for effective preproduction review.20 Amended Rule 

16(b) provides that if the parties are able to agree, the court may 

include their agreement in the case-management order. The rule, 

however, does not authorize the court to require the parties to 

enter into such an arrangement, absent their agreement. Because 

substantive privilege (and waiver) rules are beyond the scope of 

the Federal Rules of Civil Procedure, the rules recognize that although such an agreement is binding among the parties, it may or 

may not bind third parties.21 Including the parties’ agreements in 

a court order clarifies the effect of inadvertent production on the 

waiver of privilege or protection between the parties and bolsters 

the argument that no waiver has occurred as to third parties in 

other litigation.

In addition, amended Rule 26(b)(5) establishes procedures for 

asserting privilege or work-product protection claims after production. Under these procedures, the party claiming that already-produced information is subject to a claim of privilege or protection 

may notify any party that received the information of the claim and 

the basis for it. The receiving party must then promptly return, 

20. Some early decisions have refused to enforce such agreements (MCL 4th,

supra note 5, § 11.431). Other opinions and commentary have raised concerns or 

limitations about the use of such agreements. See R.J. Hedges, “A Critical Appraisal 

of Proposed Amendment to Federal Rule of Civil Procedure 26(b)(5)(B),” vol. 5, no. 

2, Digital Discovery & e-Evidence 4 (Mar. 2005) (will production of privileged materials under an agreement be deemed a waiver vis-à-vis a third party?); Maldonado 

v. New Jersey, 225 F.R.D. 120, 141 (D.N.J. 2004) (such agreements may lead to the 

disqualification of attorneys if, even after a privileged document is returned, the attorneys’ temporary possession of the document “creates a substantial taint on any 

future proceedings”). Also see The Sedona Principles, supra note 2, Comment 10.d, 

regarding concerns raised by claw back or quick peek agreements.

21. See Hopson v. Mayor and City Council of Baltimore, 232 F.R.D. 228 (D. Md. 

2005) (reviewing the conflicting case law about whether an inadvertent disclosure 

of privileged or protected information constitutes a waiver and whether a confidentiality order binds third parties in parallel or future litigation, and describing the 

benefits of embodying any waiver agreement in a court order).
Managing Discovery of Electronic Information

16

sequester, or destroy the information and any copies it has and 

may not use or disclose the information until the claim is resolved; 

if the party has disclosed the information before being notified, it 

must take reasonable steps to retrieve it. The receiving party may 

promptly present the information to the court under seal for a determination of the claim.

The accompanying Committee Note to Rule 26(b)(5) emphatically states that these procedures do not address the substantive 

questions of whether privilege or work-product protection has 

been waived or forfeited; courts should rely on developed principles to determine whether, and under what circumstances, waiver 

results from inadvertent production.22 For example, unreasonable 

delay in seeking the return of privileged information may give rise 

to a waiver. The note also emphasizes that agreed-on procedures 

under Rules 26(f) and 16(b) would take precedence over the rulebased ones.

Any assertion of privilege raises the question of how that assertion is to be tested. The accepted practice is, of course, in camera 

inspection of the material by the court. In cases involving ESI, however, the judge may have to grapple with whether the sheer volume 

of information requires new methods of review, such as sampling 

or, in the most difficult cases, the use of a special master.

Preservation of ESI

As noted above, amended Rule 26(f) and the accompanying Committee Note direct parties to discuss issues regarding the preserva22. A proposed new Federal Rule of Evidence 502 was published for comment 

in August 2006. It (1) provides that inadvertent disclosure of privileged or protected 

information in connection with a federal proceeding constitutes a waiver only if the 

party did not take reasonable precautions to prevent disclosure and did not make 

reasonable and prompt efforts to rectify the error; (2) provides that when a confidentiality order governing disclosure is entered in a federal proceeding, according 

to terms agreed to by the parties, the order’s terms are enforceable against nonparties in any other federal or state proceedings; and (3) codifies the proposition that 

parties can enter an agreement to limit the effect of waiver by disclosure between or 

among themselves, and makes clear that if the parties want protection from a finding of waiver by disclosure in separate litigation, the agreement must be made part 

of a court order. The proposed rule also limits the circumstances in which a subjectmatter waiver should be found and includes a provision on selective waiver.
Managing Discovery of Electronic Information

17

tion of discoverable information, particularly with respect to ESI 

because of its dynamic, mutable nature. In doing so, parties should 

attempt to balance the need to preserve relevant information and 

the need to continue routine computer operations critical to a party’s activities.

The court may help ensure that parties meet their responsibilities for preserving information and avoid allegations of spoliation 

by reviewing with them steps for establishing and implementing 

an effective data-preservation policy. These include (1) allowing 

the party’s “discovery liaison” to readily describe information systems, storage, and retention policies to the opposing party and the 

court; (2) interviewing key employees to determine sources of information; (3) affirmatively and repeatedly communicating litigation holds to all affected parties and monitoring compliance on an 

ongoing basis; (4) integrating discovery responsibilities with routine retention policies; (5) actively managing and monitoring document collections; (6) thoroughly documenting and demonstrating 

the efficacy of the preservation process; and (7) preparing to take 

responsibility for ensuring that information is preserved, collected, 

and produced.23

In some cases, a preservation order that clearly defines the obligations of the producing party may minimize the risk that relevant 

evidence will be deliberately or inadvertently destroyed, may help 

ensure information is retrieved when it is most accessible (i.e., before it has been deleted or removed from active online data), and 

may protect the producing party from sanctions.24

The Manual for Complex Litigation, Fourth provides guidance 

about what type of preservation order is most useful, and under 

what circumstances an order should be entered.25 Because a blanket preservation order may unduly interfere in a party’s day-today operations, may be prohibitively expensive, and may actually 

compound the information to be searched and produced, any order should be narrowly drawn to preserve relevant matter without imposing undue burdens.26 Early in the case, the court should 

23. This list is based on the discussion in Zubulake V, 229 F.R.D. 422 (S.D.N.Y. 

2004).

24. Treppel v. Biovail Corp., 2006 WL 278170, *5 (S.D.N.Y. Feb. 6, 2006) (describing the benefits of preservation orders).

25. MCL 4th, supra note 5, § 11.442.

26. For an example of a broad data-preservation order, see Pueblo of Laguna v. 

United States, 60 Fed. Cl. 133, 141–43 (Ct. Cl. 2004).
Managing Discovery of Electronic Information

18

discuss with the parties whether an order is needed and, if so, the 

scope, duration, method of data preservation, and other terms that 

will preserve relevant matter without imposing undue burdens.27

In crafting the order, it is important to know from the responding party what data-management systems are routinely used, the 

volume of data affected, and the costs and technical feasibility of 

implementing the order. Preservation orders should ordinarily include provisions permitting the destruction of information under 

specified circumstances. Preservation orders may, for example, exclude from preservation specified categories of documents or data 

whose cost of preservation substantially outweighs their relevance 

in the litigation, particularly if the information can be obtained 

from other sources. Moreover, as issues in the case are narrowed, 

the court should reduce the scope of the order. 

A closing note about preservation orders: Courts are divided as to the standard for issuance of preservation orders. One 

line of cases holds that preservation orders are, in effect, casemanagement orders and are governed by Rule 16(b).28 A few cases 

have handled preservation orders as injunctions.29

Spoliation and Sanctions

The flip side of data preservation is, of course, spoliation. Spoliation is “the destruction or material alteration of evidence or the 

failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”30 The authority to impose 

sanctions for spoliation arises under the Federal Rules of Civil Procedure and the court’s inherent powers.31 Determining whether 

27. A court may be asked to issue an ex parte preservation order, but such 

orders should rarely be entered. The court is unlikely to have sufficient information 

about the responding party’s computer system to be able to strike the correct balance between preservation and continued operation.

28. See, e.g., Treppel, 2006 WL 278170, *7; Capricorn Power Co. v. Siemens 

Westinghouse Power Corp., 220 F.R.D. 429, 433–34 (W.D. Pa. 2004); Pueblo of Laguna, 

60 Fed. Cl. at 138 n.8.

29. See In re African-American Slave Descendants’ Litig., 2003 U.S. Dist. LEXIS 

12016, *7–8 (N.D. Ill. July 15, 2003).

30. Silvestri v. General Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001).

31. Zubulake v. UBS Warburg, Inc. (Zubulake IV), 220 F.R.D. 212, 216 (S.D.N.Y. 

2003).
Managing Discovery of Electronic Information

19

sanctions are warranted for spoliation of ESI is challenging because 

it is easier to intentionally or inadvertently delete or modify ESI 

and it is more difficult for parties to craft preservation policies that 

ensure that the appropriate data are preserved.

The degree of scienter necessary to impose sanctions for spoliation is unsettled among the courts. For 

example, the Eighth Circuit Court of Appeals 

has held that an adverse inference instruction for destruction of evidence is available 

only when the destruction was intentional.32

A New Jersey district court, in contrast, has 

affirmed the imposition of sanctions against 

the defendants, including an adverse inference instruction, without any finding of bad 

faith.33 Similarly, the Second Circuit Court of Appeals has stated 

in dicta that ordinary negligence, as the result of which a party 

breaches a preservation obligation, is sanctionable.34 In general, 

however, case law supports the notion that extreme sanctions are 

available only in extreme circumstances. Once a finding of spoliation has been made, courts will address whether the specific act 

of spoliation in question justifies an extreme sanction, such as an 

adverse inference jury instruction, issue preclusion, or judgment/

dismissal, rather than a less severe sanction, such as additional 

discovery with shifting of costs and a monetary sanction.35

An issue that is likely to arise is whether spoliation sanctions 

should be imposed when evidence is destroyed in compliance 

with an established records-management policy. This, in turn, may 

lead to collateral discovery about whether such sanctions are warranted. One common function of computer systems is to delete 

certain information on an ongoing, prescheduled basis to prevent 

overloading the system (e.g., overwriting deleted digital informa32. Stevenson v. Union Pac. R.R. Co., 354 F.3d 739 (8th Cir. 2004); Morris v. 

Union Pac. R.R., 373 F.3d 896 (8th Cir. 2004).

33. Mosaid Techs. Inc. v. Samsung Electronics Co., 348 F. Supp. 2d 332 (D.N.J. 

2004).

34. Residential Funding Corp. v. DeGeorge Fin. Corp., 306 F.3d 99, 108 (2d Cir. 

2002).

35. See the Advisory Committee Note to the 1970 amendment to Rule 37 as it 

then existed (discussing Societe Internationale v. Rogers, 357 U.S. 197 (1958), and 

concluding that under Rule 37 “willfulness was relevant only to the selection of 

sanctions, if any, to be imposed”).

Considering spoliation of 

ESI and sanctions:

Degree of scienter

Extent of prejudice

Relationship to recordsmanagement policy

Rule 37(f)
Managing Discovery of Electronic Information

20

tion, recycling backup tapes, and purging e-mails). Rule 37(f), effective December 1, 2006, acknowledges such record-management 

policies, stating that “absent exceptional circumstances, a court may 

not impose sanctions under these rules on a party for failing to provide electronically stored information lost as a result of the routine, 

good-faith operation of an electronic information system” (emphasis added). Good faith may require, among other things, a party to 

modify or suspend certain features of the electronic information 

system to prevent the loss of information subject to preservation, 

and it may preclude a party from exploiting the routine operation 

of the system to thwart the party’s discovery obligations. The leadin phrase of the rule, “absent exceptional circumstances,” provides 

the court with additional flexibility for dealing with rare, complex 

situations by allowing for sanctions in extraordinary circumstances even if evidence was destroyed as a result of routine, good-faith 

operation of the system. 

Conclusion 

Discovery of ESI presents unique issues regarding the scope of discovery, the allocation of costs, the form of production, the waiver 

of privilege and work-product protection, and the preservation 

of data and spoliation. To effectively manage these issues, judges 

must understand the relevant technology at a level that allows effective communication with attorneys, parties, and experts. The 

information in this guide is a start, and additional resources can be 

found on the Center’s intranet site.

More specifically, judges must require attorneys to take seriously their obligation to meet and confer under Rule 26(f) and to 

submit a meaningful discovery plan that addresses ESI issues, and 

judges must ensure that adequate disclosures are made pursuant 

to Rule 26(a)(1). Judges must also encourage parties to narrowly 

target requests for ESI and to make these as early as possible in 

the litigation. Judges must evaluate whether the costs of complying with the requests are proportional to their benefit. To this end, 

judges may need to encourage or order tiered discovery and sampling to determine the relevance, need, and cost of more expansive discovery, and may shift costs from the producing party to 

the requesting party, particularly when information that is not rea-
Managing Discovery of Electronic Information

21

sonably accessible must be produced. Judges need to help ensure 

that ESI is produced in a usable form, and, to facilitate efficient and 

cost-effective discovery, judges may need to clarify the procedures 

to be followed if privileged or protected information is inadvertently disclosed. They should help parties establish effective datapreservation policies, balancing the need to preserve relevant 

evidence and the need to continue routine computer operations 

critical to a party’s activities, and enter preservation orders as appropriate. 

In complex cases, these responsibilities are not easy undertakings. Thus, it may be appropriate for the judge to require parties to 

provide the judge with expert briefings on the relevant technological issues, and in some instances to seek the assistance of a special master or neutral expert. For example, the court may appoint 

a neutral expert to help develop a discovery plan and supervise 

technical aspects of discovery, review documents claimed to be 

privileged or protected, or participate in an on-site inspection.36

In the end, judges must actively manage electronic discovery—raising points for consideration by the parties—rather than 

awaiting the parties’ identification and argument of the matters. 

Such active management can help ensure the expeditious and fair 

conduct of discovery involving ESI.

36. See MCL 4th, supra note 5, § 11.446, and The Sedona Principles, supra note 2, 

Comment 10.c.
Managing Discovery of Electronic Information

22

Glossary

Note: Most entries in this glossary were derived, with permission, from a glossary 

prepared by the Sedona Conference. That extensive glossary, often with fuller definitions than presented here, is updated periodically and is available for download 

at www.thesedonaconference.org.

active data (active records): Information located in a computer system’s 

memory or in storage media attached to the system (e.g., disk drives) that 

is readily available to the user, to the operating system, and to application 

software. (See storage medium.)

archival data: Information that is intentionally maintained in long-term 

storage for business, legal, regulatory, or similar purposes, but not immediately accessible to a computer system’s user. May be stored on removable media, such as CDs, tapes, or removable disk drives, or may be maintained on system disk drives. Typically stored in an organized way to help 

identify, access, or retrieve individual records or files.

backup data (disaster recovery data): An exact copy of data that serves 

as a source for recovery in the event of a system problem or disaster. Generally stored separately from active data on, for example, tapes or removable disk drives, and often without indexes or other information and, as 

a result, in a form that makes it difficult to identify, access, or retrieve 

individual records or files. 

backup tape recycling: A process in which backup data tapes are overwritten with new backup data, usually on a fixed schedule determined jointly 

by records-management, legal, and information technology (IT) sources.

computer forensics: The scientific examination and analysis of computerized data primarily for use as evidence. May include the secure collection 

of computer data; the examination of suspect data to determine details, 

such as origin and content; and the presentation of computer-based information to courts. May involve re-creating deleted, damaged, or missing 

files from disk drives; validating dates and authors/editors of documents; 

and certifying key elements of electronically stored information.

data (electronic): Information stored on a computer, including numbers, 

text, and images. Computer programs (e.g., word processing software, 

spreadsheet software, presentation software) are used to process, edit, or 

present data.
Managing Discovery of Electronic Information

23

de-duplication: A process that searches for and deletes duplicate information. (See the glossary maintained by the Sedona Conference for a description of different types of de-duplication: www.thesedonaconference.org.)

deleted data: Data that once existed on a computer as active data, but 

have been marked as deleted by computer programs or user activity. Deleted data may remain on the storage media in whole or in part until they 

are overwritten or “wiped.” Even after the data have been wiped, directory 

entries, pointers, or other information relating to the deleted data may 

remain on the computer.

deletion: A process in which data are marked as deleted by computer programs or user activity and made inaccessible except through the use of 

special data-recovery tools. Deletion makes data inaccessible with normal 

application programs, but commonly leaves the data itself on the storage 

medium. There are different degrees of deletion. “Soft deletions” are data 

marked as deleted in the computer operating system (and not generally 

available to the end-user after such marking), but not yet physically removed from or overwritten on the storage medium. Soft-deleted data can 

often be restored in their entirety. This can be contrasted with “wiping,” a 

process that overwrites the deleted data with random digital characters, 

rendering it extremely difficult to recover, and “degaussing,” which rearranges the magnetic patterns on the medium, rendering it impossible to 

recover with all but the most sophisticated computer forensics tools.

electronic discovery: The process of collecting, preparing, reviewing, and 

producing electronic documents in a variety of criminal and civil actions 

and proceedings.

embedded data: Data that include commands that control or manipulate 

data, such as computational formulas in spreadsheets or formatting commands in a word processing document. Not visible when a document is 

printed or saved as an image format. (See metadata.)

ESI: Electronically stored information.

file format: The internal organization, characteristics, and structure of 

a file that determine the software programs with which it can optimally 

be used, viewed, or manipulated. The simplest file format is ASCII (American Standard Code for Information Interchange; pronounced “ASK-ee”), 

a nonproprietary text format. Documents in ASCII consist of only text 

with no formatting or graphics and can be read by most computer systems using nonproprietary applications. Specific applications may define 
Managing Discovery of Electronic Information

24

unique (and proprietary) formats for their data (e.g., WordPerfect document file format). Files with unique formats may only be viewed or printed 

by using their originating application or an application designed to work 

with compatible formats. These formats are also called the “native” format. Computer systems commonly identify files by a naming convention that denotes the native format (and therefore the probable originating application). For example, a WordPerfect document could be named 

document.wpd, where .wpd denotes a WordPerfect file format. Other common formats are .xls for Microsoft Excel spreadsheet files, .txt for ASCII 

text files, .ppt for Microsoft PowerPoint files, .jpg for photographs or other 

images, and .pdf for Adobe Acrobat documents.

form of production: The manner in which requested documents are produced. Used to refer to both file format and the media on which the documents are produced (paper vs. electronic).

hash value: A unique numerical identifier that can be assigned to a file, a 

group of files, or a portion of a file, based on a standard mathematical algorithm applied to the characteristics of the data set. The most commonly 

used algorithms, known as MD5 and SHA, will generate numerical values 

so distinctive that the chance that any two data sets will have the same 

hash value, no matter how similar they appear, is less than one in one billion. “Hashing” is used to guarantee the authenticity of an original data set 

and can be used as a digital equivalent of the Bates stamp used in paper 

document production.

image (verb): To image a hard drive is to make an identical copy of the 

hard drive at the lowest level of data storage. The image will include deleted data, residual data, and data found in hidden portions of the hard 

drive. Also known as creating a “bitstream image” or “mirror image,” or 

“mirroring” the drive. It is different than the process of making a “logical 

copy” or “ghosting” a hard drive, which normally copies only the active 

data found on the hard drive, and not the deleted data, residual data, and 

data found in hidden portions of the hard drive.

legacy data: Information in which an organization may have invested significant resources to develop and which retains importance, but which 

was created and is stored with software and/or hardware that has become 

obsolete or replaced (“legacy systems”). May be costly to restore or reconstruct.

metadata: Information about a particular data set or document which describes how, when, and by whom the data set or document was collected, 
Managing Discovery of Electronic Information

25

created, accessed, or modified; its size; and how it is formatted. Some 

metadata, such as file dates and sizes, can easily be seen by users; other 

metadata can be hidden from users but are still available to the operating 

system or the program used to process the data set or document. (See 

embedded data and systems data.)

nearline data storage: Storage in a system that is not physically part of 

the computer system or local network in daily use, but can be accessed 

through the network. Nearline data may be stored in a library of CDs, which 

can be automatically located and mounted for reading, or stored at a remote location accessible through an Internet connection. There is usually 

a small time lag between the request for data stored in nearline media and 

the data’s availability to an application or end-user. Making nearline data 

available is an automated process (as opposed to “offline” data, which can 

only be made available by a person physically retrieving the data). 

offline storage: The storage of electronic records, often for long-term archival purposes, on removable media (e.g., CDs, removable disk drives) 

or magnetic tape that is not connected to a computer or network. Accessibility to off-line media usually requires manual intervention and is much 

slower than online or nearline storage, depending on how and where the 

media are stored.

PDF (portable document format): A file format developed by Adobe Systems Incorporated. Documents, once converted to this format, are readable outside of the application that created them. A PDF file captures 

document formatting information (e.g., margins, spacing, fonts) from the 

original application (e.g., WordPerfect) in such a way that the document 

can be viewed and printed as intended in the original application by the 

Adobe Reader program, which is available for most computer operating 

systems. Other programs (notably Adobe Acrobat) are required to edit or 

otherwise manipulate a PDF file.

records management: The activities involved in handling information, 

generally for organizations that are large data producers. Records management includes maintaining, organizing, preserving, and destroying information, regardless of its form or the medium on which it is stored.

residual data (ambient data): Data that are not active on a computer system and that are not visible without use of “undelete” or other special 

data-recovery techniques. May contain copies of deleted files, Internet 

files, and file fragments.
Managing Discovery of Electronic Information

26

restore: To transfer data from a backup or archival storage system (e.g., 

tapes) to an online system. Restoration of archival data may require not 

only data restoration but also replication of the original hardware and software operating environment.

sampling: A process of selecting and searching a small part of a larger data 

source to test for the existence or frequency of relevant information, to assess whether the source contains privileged or protected information, and 

to assess the costs and burdens of identifying and producing requested 

information. 

search engine: A program that enables a search for keywords or phrases, 

such as on webpages throughout the World Wide Web. (See the glossary 

maintained by the Sedona Conference for a description of different types 

of searches: www.thesedonaconference.org.)

storage medium: The physical device containing ESI, including computer 

memory, disk drives (including removable disk drives), magneto-optical 

media, CDs, DVDs, memory sticks, and tapes.

systems data: Information about a computer system that includes, for example, when people logged on and off a computer or network, the applications and passwords they used, and what websites they visited.
The Federal Judicial Center

Board

The Chief Justice of the United States, Chair

Judge Bernice B. Donald, U.S. District Court for the Western District of Tennessee

Judge Terence T. Evans, U.S. Court of Appeals for the Seventh Circuit

Magistrate Judge Karen Klein, U.S. District Court for the District of North Dakota

Judge James A. Parker, U.S. District Court for the District of New Mexico

Judge Stephen Raslavich, U.S. Bankruptcy Court for the Eastern District of 

Pennsylvania

Judge Sarah S. Vance, U.S. District Court for the Eastern District of Louisiana

Judge Karen J. Williams, U.S. Court of Appeals for the Fourth Circuit

James C. Duff, Director of the Administrative Office of the U.S. Courts

Director

Judge Barbara J. Rothstein

Deputy Director

John S. Cooke

About the Federal Judicial Center

The Federal Judicial Center is the research and education agency of the federal judicial system. It was established by Congress in 1967 (28 U.S.C. §§ 620–629), on the 

recommendation of the Judicial Conference of the United States.

By statute, the Chief Justice of the United States chairs the Center’s Board, 

which also includes the director of the Administrative Office of the U.S. Courts and 

seven judges elected by the Judicial Conference.

The organization of the Center reflects its primary statutory mandates. The 

Education Division plans and produces education and training programs for judges 

and court staff, including satellite broadcasts, video programs, publications, curriculum packages for in-court training, and Web-based programs and resources. 

The Research Division examines and evaluates current and alternative federal court 

practices and policies. This research assists Judicial Conference committees, who 

request most Center research, in developing policy recommendations. The Center’s 

research also contributes substantially to its educational programs. The two divisions work closely with two units of the Director’s Office—the Systems Innovations 

& Development Office and Communications Policy & Design Office—in using print, 

broadcast, and online media to deliver education and training and to disseminate 

the results of Center research. The Federal Judicial History Office helps courts and 

others study and preserve federal judicial history. The International Judicial Relations Office provides information to judicial and legal officials from foreign countries 

and assesses how to inform federal judicial personnel of developments in international law and other court systems that may affect their work.