What’s ESI? Figuring Out the Nitty-Gritty of Electronically-Stored Information (Part 1)

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ESI

The mountains of personal data to which today’s lawyers have access — not to mention the ease with which it can be accessed — would leave those from a generation ago flabbergasted.

Much of this personal data can be uncovered as electronically-stored information (ESI) on social media, with its massive offerings of self-disclosed personal facts and tidbits that would have only previously been compiled so neatly in an individual’s private diary.

The raw breadth of this ESI may leave attorneys feeling overwhelmed, perhaps pondering a number of questions: What exactly is out there? How can we get it? and What can you do with this information once you have it? While I can’t completely walk you through every situation from start to finish, I can offer answers to these three questions that may serve as a helpful starting point in your research.

What Information Is Available?

So, what is meant by the “mountains of personal data” available as ESI? Instead of just haphazardly dumping a list of different types of personal data that may mean absolutely nothing out of context, let’s start with another question: Where do you find this information?

Indeed, the ESI that you can access is essentially dependent on the source of that information. For instance, you are highly unlikely to find an individual’s criminal record on Facebook (although you never know), just as you’d be hard pressed to find that individual’s opinions about a current news story in his or her voter registration.


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Thus, knowing your sources is instrumental in defining the types of ESI that can be accessed. And these sources generally fall into one of two categories: social media or public records.

And I mean “social media” broadly enough to include not only your typical sources like Facebook and Twitter, but also other services such as cloud email platforms, blogs, and dating sites. Most lawyers are by and large fairly aware of social media and the (sometimes inappropriate) amount of information furnished by individuals about themselves and their lives. Perhaps, though, not as many know the kind of information accessible from social media.

While I’ll delve into the details on how to get this information in Part 2 of this article, it’s possible for attorneys to collect, among other things, social media message content; multimedia assets such as photos and videos; affiliation lists (such as Facebook “Friends” or LinkedIn’s “Connections”); geolocation data; IP addresses used; login dates and times; site browsing history; and credit card information.

In other words, social media can be an excellent source of all the information furnished by individuals themselves, as well as the information recorded about users as a consequence of their simple use of the site or service. This distinction between these information types is important and will be revisited in the Part 2.

Delving into Public Records

Another area of ESI is public records. The sheer number of various public records databases in existence means that, under most circumstances, substantial ESI data can be obtained on nearly any individual. Although these records have been largely maintained in the same or similar fashion today as they had been long before the rise of social media, the electronic centralization and accessibility of ESI records is relatively new. In other words, the kind of comprehensive record-searching that would have been cost- and time-prohibitive two or three decades ago is now within the grasp of most attorneys.

As mentioned above, though, there is a wide assortment of databases — too many to comprehensively list here in this limited space. But here’s the short version of what kind of ESI data you can collect on individuals:

  • birth and death records;
  • address history;
  • credit reports;
  • criminal records (including those relating to arrests);
  • other court records (such as civil lawsuits, bankruptcies, liens, and judgments);
  • phone and email records;
  • voter registrations; and
  • asset records.

There are also a number of public record searches of business entities available, and some public record searches even allow you to locate any potential social media accounts or other web sites relating to the subject of the search.


In the second part of this article, we will examine what you can do with electronically-stored information you’ve obtained from social media and online people searches.