Websites Are ESI. Rule 26 Says So.
Rule 26 of the Federal Rules of Civil Procedure sets the scope of discovery in United States civil litigation. It defines what the parties can request, what they must produce, and how they must plan for the exchange of information at the outset of a case. Since the 2006 amendments explicitly brought electronically stored information within the reach of the rule, and the 2015 amendments tightened the concept of proportionality, Rule 26 has become the central lens through which lawyers view digital evidence.
For years, that lens focused on email, file shares, and later on Slack, Teams, and mobile devices. Websites received less attention. A public webpage was assumed to be inert – something anyone could revisit at any time – and therefore not something a party needed to preserve, collect, or produce with any particular care. That assumption has quietly stopped being true. Websites change many times a day. Personalisation engines display different content to different users. Third-party scripts inject material the site owner never wrote. And regulatory or contractual disputes routinely turn on what a customer, patient, investor, or citizen actually saw at a specific moment.
When those disputes reach the courtroom, Rule 26 is the rule that decides what website material has to be produced. Legal and compliance teams that treat their organisation’s web content as within the scope of Rule 26 are increasingly the ones who avoid problems. Those that treat it as outside the scope are the ones who discover, too late, that the requesting party disagrees.
What Rule 26 Actually Requires
Rule 26 is a large rule with several distinct subparts. Three of them do the heavy lifting when websites are involved.
Rule 26(a) governs initial disclosures. Within a short window after the parties confer, each side must disclose the categories and locations of documents, electronically stored information, and tangible things it may use to support its claims or defences. A firm that intends to rely on the state of its own website at a particular moment – for example, to show what disclosures were published, what terms of service applied, or what advertising claims were made – is expected to identify that ESI as part of its initial disclosures.
Rule 26(b) defines the scope of discovery. Parties may obtain non-privileged material that is relevant to any party’s claim or defence and proportional to the needs of the case. Since 2015, proportionality has been the operative test. Courts consider the importance of the issues at stake, the amount in controversy, the parties’ relative access to the information, the resources available, the importance of the discovery in resolving the issues, and whether the burden or expense outweighs the likely benefit. Rule 26(b)(2)(B) adds a specific carve-out for ESI: a party need not provide ESI from sources that the party identifies as not reasonably accessible because of undue burden or cost. The requesting party can still seek that material by showing good cause, at which point the court decides whether to order production, and on what conditions.
Rule 26(f) requires the parties to confer early in the case and to develop a joint discovery plan. The rule specifically calls out issues about disclosure, discovery, or preservation of ESI, including the form or forms in which it should be produced. The 26(f) conference is where reasonable lawyers work out in advance the questions that would otherwise become expensive discovery motions six months later.
How Rule 26 Applies to Website Content
Website content is ESI. Nothing in Rule 26 excludes it, and courts routinely treat it that way. What makes web ESI different from email or documents is the mismatch between the way the content is produced and the way most organisations preserve it.
Email is written once and stored in a mail system that already retains a searchable copy. A contract is drafted, saved, and locked into a document management system. A webpage is different. It is assembled every time a visitor requests it – from a content management system, from third-party scripts, from personalisation engines, and often from ephemeral session state. When the content changes, nothing in the ordinary operation of the website preserves what it used to look like. Unless the organisation has built a deliberate archiving process, the historical state of the site simply ceases to exist.
That has direct consequences under Rule 26. If a firm is asked to produce the version of a webpage that was live on a specific date in a specific quarter, and the firm has never archived that page, the firm is in the position of having to explain why the material it once controlled no longer exists. Depending on when the duty to preserve attached and how foreseeable the litigation was, that explanation can range from unproblematic to sanctionable.
Proportionality and the Web Archive
Proportionality is a two-way test. It protects producing parties from overbroad demands, and it protects requesting parties from producing parties who invoke burden to avoid producing material they in fact possess.
Applied to websites, proportionality tends to favour producing parties who have already invested in a systematic archiving programme. A firm that captures its public-facing site to WARC format on a scheduled basis can typically identify, retrieve, and produce the version of a page that was live on a specific date with minimal effort. The archive was built once, and any specific production is a lookup against material that already exists in a standard, replayable form.
A firm without that infrastructure is in a different position. Reconstructing a page after the fact – from CMS revision histories, database snapshots, marketing team drafts, or the third-party services that rendered part of the page – is not merely inconvenient. It is often impossible, and where it is possible, it produces material of doubtful authenticity. The party then has to argue that reconstruction is too burdensome to be proportional. Courts, aware that other litigants preserve web content routinely, are not always sympathetic to that argument.
The lesson is that Rule 26 proportionality does not stand still. What is proportional today depends in part on what is technically feasible today. As WARC-based archiving becomes standard practice in regulated industries, the case for treating web preservation as an ordinary cost of doing business grows stronger.
Not Reasonably Accessible: The 26(b)(2)(B) Question
Rule 26(b)(2)(B) allows a party to designate certain ESI as not reasonably accessible because of undue burden or cost. The classic example is data on legacy backup tapes intended for disaster recovery rather than routine access. The producing party carries the burden of showing that the source falls within the exception, and the requesting party can override the designation by showing good cause.
Website content occupies an interesting position on this spectrum. The current version of a website is manifestly accessible – anyone can visit it. Historical versions are only accessible to the extent the site owner captured them. Where an organisation has an active WARC-based archive covering the relevant period, historical pages are readily accessible: they can be retrieved, replayed, and produced in a standard format. Where no archive exists, the historical page may be genuinely unrecoverable, and the party is left explaining that gap rather than negotiating over the format of production.
The direction of travel is clear. Organisations that treat their website archive as production infrastructure – built into ordinary operations, funded as part of the compliance budget – keep the ability to answer Rule 26 requests without argument. Those that treat archiving as optional invite disputes they cannot win on the merits.
The 26(f) Conference and Websites
Sophisticated litigators now raise website ESI at the 26(f) conference as a matter of course. The topics that tend to come up include:
- Which properties are within scope – corporate site, product sites, blog subdomains, region-specific sites, social channels linked from the site.
- The relevant time window and how frequently pages within that window changed.
- How the producing party has preserved the historical state of the site, and in what format.
- The form of production. WARC files are natively replayable in modern viewers; PDF and HTML exports are lossier and cannot capture interaction; a hybrid approach is often agreed.
- Handling of dynamic content, personalisation, geolocation-driven variants, and A/B tests.
- Third-party content – embedded videos, live chat widgets, tag manager scripts – and whether it is treated as within or outside the producing party’s possession, custody, or control.
A firm that turns up to a 26(f) conference able to answer these questions crisply – because its archiving programme was designed with them in mind – shortens discovery. A firm that has to ask its IT team what it can produce, and receives an evasive answer, extends it.
Preservation and the Rule 37(e) Backstop
Rule 26 is often discussed in the same breath as Rule 37(e), which sets out the sanctions available when ESI that should have been preserved is lost. Rule 37(e) was amended in 2015 to establish a two-tier framework. If ESI was lost through failure to take reasonable steps to preserve it, and it cannot be restored or replaced, the court may order measures no greater than necessary to cure the prejudice. If, in addition, the court finds that the party acted with intent to deprive another party of the information’s use, the court may go further – adverse-inference instructions, exclusion of evidence, or dismissal.
Applied to websites, the reasonable-steps standard sits close to what mature archiving programmes already do: scheduled crawls of the public-facing site, capture to WARC format, hash-verified storage, and enough audit trail to demonstrate what was captured, when, and by whom. Ad hoc screenshotting after the litigation starts does not meet the standard. Neither does relying on the CMS revision history, which typically preserves only the last handful of published states and does not capture third-party or personalisation-driven content at all.
The interaction with Rule 26 is straightforward. A party that has taken reasonable preservation steps in advance of the litigation is in a position to satisfy its Rule 26 obligations without argument. A party that has not is often litigating the preservation question long before the merits.
What This Means for Compliance and Legal Teams
Rule 26 is not a rule about web archiving. It is a rule about civil discovery, which now encompasses web content because web content is ESI. The practical implications for organisations subject to United States civil litigation are:
The website is a business record. It is discoverable to the same extent as any other ESI, and its historical state can become material in a wide range of disputes: consumer protection, securities, employment, intellectual property, product liability, and contract.
Ordinary web infrastructure does not preserve the historical state of the site. CMS revision histories are incomplete, backups are for disaster recovery rather than production, and screenshots are not systematic. A dedicated archiving programme is what stands between the organisation and a preservation problem.
WARC-format archives, produced on a schedule, on immutable storage, with hash verification, hold up under Rule 26 review because they are what an experienced e-discovery lawyer expects to see. They allow production in a form the requesting party can replay, they carry the metadata that supports authentication, and they support proportionality arguments because they are cheap to search once built.
The 26(f) conference is a lot easier when the answer to “what is preserved and in what format” is already known.
About Aleph Archives
Aleph Archives captures websites and their subdomains in native WARC format aligned with ISO 28500, on immutable storage with cryptographic hash verification. Captures are scheduled, replayable in interactive form as they appeared on the capture date, and accompanied by audit trails suitable for e-discovery production and Rule 902 authentication. Legal, compliance, and IT teams use the platform to meet preservation obligations before the litigation hold arrives, so that Rule 26 requests are answered from an archive that is already there.
