E-Discovery no longer dominantly involves emails and shared drive documents. With the increasing prevalence of mobile devices in the workplace and new apps being developed daily, mobile data and other non-email communications are moving to the forefront of discovery. Times have changed, and attorneys have professional and ethical obligations to keep up. To effectively and competently represent clients, attorneys must stay apprised of how to work with these ever-changing forms of data – or get help from someone knowledgeable. To do so, we have set out some suggestions below organized around common stages of the discovery lifecycle of digital evidence.
Identification. In conducting custodian interviews, ask questions to target the data types the custodian works with. Start broadly by determining if the company has a BYOD policy and asking if they allow the use of personal devices for work purposes. Confirm which messaging tools they use for business purposes, with the understanding that people tend to play down such use. For each messaging application, ask how they are used and with whom they communicate. Discuss these same topics with your client’s IT team to better understand the company’s policies and capabilities for controlling the use of personal devices, as well as employees’ actual practices.
Preservation. Where a preservation obligation exists, it is critical that the company take good faith and proportionate steps to retain and not alter relevant data. This usually involves sending a legal hold notice, which may expressly instruct regarding mobile data. It may make sense to then follow up on the notice with a custodian interview to explore whether, for example, there are automatic deletion functions or capacity limits in place for personal devices, and if they can be suspended to preserve relevant information or if the device needs to be imaged. Work with the IT department to ensure that it is preserving data not already kept in the ordinary course of business. For example, ephemeral messaging apps, which generally exist on mobile devices (although some enterprise versions exist), are becoming more and more popular and may be subject to preservation obligations. (There are differing opinions on this, so do your research.) Where implicated, explore what it would take to preserve such data and/or whether custodians under legal hold need to be instructed to cease using such tools for relevant purposes. Deleted messages may disappear forever or may be difficult and costly to retrieve, and no one wants to be on the wrong side of a motion for sanctions. Documenting your good faith and reasonable steps to meet your preservation obligations will go a long way in mitigating the risk of sanctions.
Define the Scope of Discovery. While mobile data and other information from new technologies (e.g., collaboration apps) can be powerful evidence, it often is completely irrelevant and function more to balloon data volumes, unnecessarily driving up costs. Practitioners should consider (i) expressly addressing issues of proportionality for these new data types when negotiating an ESI protocol, carrying this forward to the Rule 26(f) and Rule 16(b) meetings and conferences; and (ii) staging discovery such that mobile/new data review is contemplated only if traditional discovery is completed and shows a specific need for the new data. Consider how privacy considerations may limit the discoverability of mobile data and avoid full-phone imaging. See our other blog post here on this topic. If the matter really requires these alternative sources of data, identify specific types shown to be relevant and propose excluding the rest.
Collection. Selecting the right vendor can make a huge difference in managing mobile/new data. When using a vendor (self-collection carries certain risks that should be explored before undertaking), ensure that it not only can appropriately collect and process the data, but also provide a workable, efficient and user-friendly solution for review and production. Be specific with the vendor upfront about the relevant data types and learn their approach to each stage of the process. Equally important is to get the early cooperation of custodians, as mobile data in particular can be difficult to collect without their explicit involvement. For example, WhatsApp data collected from a smart phone is encrypted and requires the user’s password even when the vendor images the device. Failing to address encryption up front may result in wasteful repeat collections or, worse, the loss of data.
Review. Before deciding on a vendor, it is important to get educated about the various tools available for review of text and other nontraditional data so you can determine the best approach. For example, text messages and chat may by default be placed on an Excel spreadsheet. That strategy may be OK for a small number of messages, but larger volumes can quickly render that solution unworkable. Happily, many vendors have tools to convert text messages into an email format for review. Others may even convert such data into a format more similar to what the user experiences in the native application, aiding in the search and review process. Discuss options with your vendor and understand its platform’s capabilities and shortcomings. Determine how the vendor processed the data to understand how the chat messages are grouped together for review. Consider batching out for review only those messages that hit on responsive search terms, and review the surrounding messages for context in the family view.
Production. Production presents its own challenges. Absent agreement of the parties or a court order, a responding party must produce the information as it is ordinarily maintained or in a form that is reasonably usable. (Different jurisdictions have different rules. For example, if you are in California, you may also need to produce according to request. See our client alert on this topic here.) The metadata and file formats that you find in mobile/new data differ significantly from those in more traditional data. You may be expected to confer with opposing counsel regarding requisite metadata fields and production format. Be wary that certain metadata, such as fields created during processing, may contain privileged or other non-discoverable information. Further, text chains may go on seemingly forever, but only part may be discoverable. Work with the vendor to define the boundaries of the relevant document. Finally, when making any production in native format, ensure that that you are aware of all of the fields you are producing and that there are no links to something you do not intend to produce.
With a bit of planning and spadework, you can tame the mobile data beast and turn these challenges into opportunities.