What is an ESI Discovery Order?

An ESI Discovery Order is a court-issued directive that governs how parties in a lawsuit must handle Electronically Stored Information (ESI) during the discovery phase. ESI includes emails, text messages, digital documents, databases, social media posts, and other digital records relevant to a legal dispute.

In personal injury and mass tort cases, ESI discovery orders help ensure that important digital evidence is preserved, produced, and reviewed in a fair and organized manner.

What does ESI mean in legal discovery?

ESI stands for Electronically Stored Information, a broad category of data created, stored, or transmitted in digital form. During discovery, both sides must exchange relevant information—and in the digital age, that often includes ESI.

Common examples include:

• Emails and internal communications

• Electronic medical records (EMRs)

• Accident or incident reports stored digitally

• Social media content

• Text messages and phone logs

• Digital surveillance or GPS data

Because digital data can be easily deleted or altered, courts issue ESI Discovery Orders to preserve the integrity of that information.

What is the purpose of an ESI Discovery Order?

An ESI Discovery Order establishes the rules and protocols for identifying, collecting, preserving, and producing digital evidence in a case. It’s especially important in large, complex litigation—such as product liability or mass torts—where thousands of files may need to be searched and exchanged between parties.

The order helps prevent data loss, reduce disputes, and ensure that both sides have fair access to relevant information.

• Defines scope of ESI discovery (what types of data are relevant).

• Outlines deadlines and formats for production of digital files.

• Establishes protocols for handling privileged or sensitive information.

• Preserves potentially critical evidence before it can be altered or deleted.

When is an ESI Discovery Order issued?

Courts may issue an ESI Discovery Order early in litigation, often after a Rule 26(f) “meet and confer” between attorneys. This early planning stage allows both parties to agree (or litigate) issues such as data formats, sources, custodians, and search terms.

The order is particularly important in cases involving corporate defendants, where massive amounts of internal digital data must be reviewed.

• Often follows a Rule 26(f) discovery conference.

• Issued in complex or high-stakes civil litigation.

• Tailored to the size and complexity of the case.

• Helps reduce disputes over what must be disclosed.

What happens if a party violates an ESI Discovery Order?

Violating an ESI Discovery Order—such as by failing to preserve data or withholding relevant digital files—can result in serious consequences. Courts may impose sanctions, including monetary fines, exclusion of evidence, or even default judgment.

Federal Rule of Civil Procedure 37(e) outlines penalties for spoliation (destruction) of ESI when a party fails to take reasonable steps to preserve it.

• Sanctions for noncompliance include evidence exclusion or adverse inference.

• Deleting or failing to preserve ESI may be seen as spoliation.

• Intentional misconduct can lead to harsher penalties, including dismissal.

• Timely cooperation helps avoid costly discovery battles.

Conclusion

An ESI Discovery Order is an essential tool in modern civil litigation, setting clear expectations for how digital evidence must be handled. In personal injury and mass tort cases, this order helps protect valuable information and ensures both sides have access to the truth. Following an ESI Discovery Order is not just about compliance—it’s about credibility, fairness, and justice.