Instant messages, random access memory (RAM), voicemail, graphic images on cell phones, personal digital assistants (PDAs), web-based e-mail — the 2006 amendments to the Federal Rules of Civil Procedure have made it clear that these types of electronically stored information (ESI) are fair game during discovery, if relevant and not unduly burdensome to produce.

Rule 34’s Advisory Committee Notes to the 2006 amendments explicitly state that “Rule 34(a)(1) is expansive and includes any type of information that is stored electronically” and is “intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.” Similarly, ABA Standards Relating to Electronic Discovery broadly define ESI as “any information created, stored, or best utilized with computer technology of any type.” Civil Discovery Standards, Section 29 (August 2004). The Conference of Chief Justices’ Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (August 2006) likewise broadly defines ESI to include:

[D]ata; word-processing documents; spreadsheets; presentation documents; graphics; animations; images; e-mails and instant messages (including attachments); audio, video, and audiovisual recordings; voicemail stored on databases; networks; computers and computer systems; servers; archives; back-up or disaster recovery systems; discs, CD’s, diskettes, drives, tapes, cartridges and other storage media; printers; the Internet; personal digital assistants; handheld wireless devices; cellular telephones; pagers; fax machines; and voicemail systems.

In light of these expansive concepts of ESI, courts are now requiring parties to produce — or at least to preserve — electronic information beyond documents stored on computers and e-mails.

For example, ESI on phones, including graphic images on cell phones and voicemail messages, may be discoverable. In a recent case, the U.S. District court for the District of Columbia ordered a plaintiff who alleged employment discrimination based on his sexual orientation to preserve graphic images on his cell phone, which defendant claimed were relevant to its defense. Smith v. Café Asia, 246 F.R.D. 19 (D.D.C. Oct. 2, 2007). The court balanced plaintiff ’s privacy concerns with the need for fully informed discovery and trial preparation and thus ruled that the images must be preserved in order to allow the trial judge to determine their admissibility. Id. at *22. However, the court limited the inspection of the images by the defendants to only one attorney of defendants’ choosing. Id. at *21.

With respect to voicemail, in another recent case, plaintiffs in a litigation against Merck regarding its product Vioxx requested a court order requiring Merck to preserve voicemails regarding Vioxx. Merck argued that preserving voicemails would be burdensome. New Jersey Superior Court Judge Carol Higbee ordered Merck and its employees to preserve existing Vioxx-related voicemail messages. In Re Vioxx Litigation, Case Code No. 619 (N.J. Super. Ct. Law Div. Sept. 8, 2006). The judge noted that the preservation order would not apply to messages between Merck’s legal employees relating directly to the Vioxx litigation, as those would be privileged. Merck, in turn, instructed its employees not to leave any Vioxx-related voicemails. In contrast, in Burrell v. Anderson, 353 F. Supp. 2d 55 (D. Me. 2005), the court held that plaintiff was not entitled to spoliation sanctions from government offices that had failed to preserve voicemail messages plaintiff had left. Plaintiff contended that defendant should have known that plaintiff would later need those messages “to prove that he was not being abusive in leaving the messages and that he was indeed complaining of matters of great public concern.” Id. at 58. The court noted that if plaintiff thought defendants should have preserved his one-sided messages, then perhaps plaintiff should have recorded his messages on his own. Id. at 83 n.33.

Instant messages (IMs) have yet to generate significant discovery-related litigation, but with their growing use at both work and home, it is inevitable that they will be the subject of future discovery battles. In fact, the issue of preserving instant messages did arise in a 2005 litigation in Maryland Circuit Court. See Quotient, Inc. v. Toon, 2005 WL 4006493 (Md. Cir. Ct. Dec. 23, 2005). In Quotient, plaintiff sought an order that would permit its retained expert to copy defendant’s personal computer system without examining any of its contents, and to keep the contents sealed until further court order. Id. Plaintiff argued that it had searched its own business computers and discovered relevant e-mails and IMs between defendant and a former employee. Id. Plaintiff pointed specifically to an IM in which defendant and the former employee discussed the former employee’s plans to bid against plaintiff for upcoming work with one of plaintiff’s existing clients. Id. The court, noting that there was no evidence that plaintiff had concealed or destroyed evidence, allowed the copying of plaintiff ’s computer for fear of “unintentional destruction of relevant evidence,” noting that “the unintentional destruction of relevant evidence should be halted when it can be done so in a fashion that is minimally intrusive and where [plaintiff ] is willing to bear the full cost of the process.” Id. at *3. The court was persuaded that it was likely that relevant evidence — including IMs — “could be made less accessible to the parties merely by [defendant’s] normal course of computer use, regardless of his intentions and motive.” Id.

The prospect of broad discovery of exotic ESI is a doubleedged sword. The good news is that the rules allow for the discovery of numerous forms of relevant ESI; since employees communicate via several electronic media, an IM or voicemail could provide the necessary “smoking gun” in a case. The bad news is that more formats of discoverable information require more time, cost, and expertise for discovery, and more caution by employees regarding how they communicate sensitive information.