The forthcoming Federal e-discovery Rules are a welcome advance, but they do not address all of e-discovery’s challenging issues. For example, how should the law treat instant messaging (IM) or other forms of real-time communications? When must organizations or individuals preserve dynamic data such as databases or work in progress? Practical realities and established legal principles from the age of typewriters and telephones teach us that businesses should need to preserve real-time communications and dynamic data only when they record them for business purposes.

I. Real-Time Communications vs. Asynchronous Communications

All communication can be broken down into two categories: real-time and asynchronous. The term “real-time communications” can apply equally to old-fashioned phone calls, talks with a neighbor, or instant-messaging “chat.” Though IM chat happens over networks on computers, it is very much like live conversation. As its name implies, it is interactive, informal, and spontaneous.

By definition, real-time communication requires all participants to be available at once, which is why instant-messaging software informs users which of their “buddies” are online and available to chat. In the same way that you cannot have a phone conversation if no one answers, users cannot chat with participants who are not available to respond.

Email is different from instant messaging in that it is more like a traditional mailed letter. These communications are “asynchronous” because you can write and send a letter or an email regardless of whether the recipient is available at that moment to receive it. Therefore letters, like email messages, are often more formal, lengthy and considered than IM chat. More importantly, people expect that email and letters may be recorded and accessible in the future. These practical differences between real-time and asynchronous communications should have consequences for the law of discovery.

The proposed Rules amendments have helpfully introduced the concept of “electronically stored information” (ESI) into the law of discovery and put it on an equal footing with the old concept of a “document.” The proposed new Rules do not define ESI, but the proposed Committee Note to Rule 34(a) explains that the change “clarifies that Rule 34 applies to . . . information that is stored in a medium from which it can be retrieved and examined.” The Committee Note further counsels that the term “is expansive and includes any type of information that is stored electronically.” ESI is a broad concept, and its true boundaries will be developed in the case law.

In the meantime, we can reach some conclusions from the fact that electronic information must be stored in order to constitute ESI. Email is clearly ESI because it is both electronic and stored in the recipient’s “inbox” until it is opened and read. Like paper documents, relevant ESI must be preserved and produced in discovery.

By contrast, IM conversations—like telephone calls—are not ESI so long as they are not “stored” in any analogous way. They consist of electronic data transmitted in real time over wires. Unless unusual steps are taken, these conversations are not recorded. In the case of telephone calls, this presumption is so strong that many jurisdictions prohibit recording calls without the consent of one or both parties. Current law requires institutions to record their phone calls only in very rare and specific circumstances. For example, certain stock brokers with “troubled regulatory and compliance records” must record their phone calls with customers. Even then, however, those stockbrokers must comply with federal and state civil and criminal statutes governing the tape recording of conversations. These requirements range from giving notice to, and obtaining consent from, the participants to implementing systems of regular beep tones that warn callers that calls are recorded. Similarly, we have all heard the warning when calling customer service numbers: “This call may be monitored or recorded for quality assurance purposes.”

In terms of technology and user expectations, instant messages are like phone conversations and the law should treat them as such. In our experience, people who engage in IM chat have the same expectations of privacy as people have regarding phone calls. Most people do not expect phone calls or IM chat to be preserved or that by chatting, they have somehow created a record. Instant message “sessions” are displayed in a small “chat window” on the computer. When the chat is over, the user closes the window and the chat session typically disappears automatically, without being saved.

Although IM software can permit users to “record,” or save, an IM session, generally this feature is disabled unless users consciously turn it on. We surveyed the leading IM products that do provide recording features (AIM, GoogleTalk, ICQ, MSN Messenger, Windows Live Messenger, Windows Messenger, and Yahoo! Messenger); none are set to record chats by default. In fact, the dialog box in the three Microsoft IM products that allows users to change the default recommends that users notify their contacts that their IM sessions will be saved. This feature reflects the general expectation of IM users that IM is a transitory, private, one-on-one means of communication that will not be saved. The fact that users and IM programs do not usually store IM in a designated location from which users can retrieve it means that it is not “electronically stored information.” Therefore, generally speaking, IM should not be subject to preservation requirements or discovery. Just like phone calls and in-person conversations, IM sessions need not be recorded and are not discoverable ESI or “documents” under traditional discovery rules. However, if users choose to save IM sessions or any other communications as a written or audio “document,” they will likely have to retain it if it is relevant to a dispute and produce it if requested.

II. Dynamic Data and Work-in-Progress

Dynamic data and works-in-progress raise different problems under the new Rules’ concept of “electronically stored information.” Creators of such dynamic work products often “store” the electronic data in designated places and later retrieve it for updating or further development. This means databases and drafts are presumptively ESI and discoverable. The tough question is when, if ever, organizations must store or preserve incremental changes (for later production in litigation), since the end product is constantly changing. Are incremental changes ESI? They are certainly electronic information, but have they been “stored”?

Again, practical facts and existing precedents can provide guidance. While users technically can record every change, addition, and deletion to a memo or database during its life, that generally is not necessary, practical, or legally required—nor should it be. This legal conclusion should apply equally to memos written on computers, on typewriters, or with pencils.

Think of a work-in-progress as a draft memo that you are writing on a computer. You change the memo with every keystroke as you add, delete, or move characters. Similarly, dynamic data could be a database that is frequently updated either by individuals, groups of people, or automatic processes. For example, data feeds from point-of-sale terminals and sales-staff reports constantly update and change a company’s sales database with new information. Most enterprises could not even contemplate preserving the vast quantity of data that would be required to determine the exact state of a dynamic database at any moment, days, months, or years earlier. In drafting this article, we, like most authors, had no need or means to capture every change made as the draft evolved over the hours, days, and weeks of its gestation.

Certainly, on many occasions organizations and individuals choose to save select versions of drafts or record the status of databases in order to circulate drafts for feedback or to run reports like monthly sales statistics. Those specially saved versions of reports or printouts have clearly been “stored” and must be preserved if they are relevant to pending or anticipated litigation. In the old paper context, courts would consider these “documents.” However, the existence of particular saved versions should not mean that organizations have to stop updating and changing databases or works-in-progress, nor should the law require them to record or preserve every change for possible discovery.

Conclusion

The question of how much dynamic data or real-time communication organizations and individuals should retain will be a prominent concern for litigants in applying the new e-discovery rules. When these issues arise in discovery disputes, courts should apply traditional discovery doctrines by analogy to new technologies and allow practical realities—such as habits, expectations, and costs—to inform data preservation requirements and discovery orders.

Thomas W. Burt is the Corporate Vice President and Deputy General Counsel at Microsoft Corporation in charge of litigation. Gregory S. McCurdy is a Senior Attorney in that group focusing on e-discovery policy and international antitrust litigation.

Preferred Citation: Thomas W. Burt & Gregory S. McCurdy, E-Discovery of Dynamic Data and Real-Time Communications: New Technology, Practical Facts, and Familiar Legal Principles, 115 Yale L.J. Pocket Part 166 (2006), http://yalelawjournal.org/forum/e-discovery-of-dynamic-data-and-real-time-communications-new-technology-practical-facts-and-familiar-legal-principles.