Setting the stage for mobile device e-discovery

Electronically stored information on mobile devices—mobile ESI—is quickly becoming relevant, if not critical, in a wide variety of corporate investigations and litigation including employment, intellectual property and trade secrets, securities, and other areas. Even so, many organizations face a number of challenges in obtaining mobile ESI, not least of which is the blurry and sometimes shifting line between personal and corporate data.

Scott-Giordano-255x300Scott Giordano, Exterro’s Corporate Technology Counsel, applies legal, business, and technical skills to problem-solving in corporate ethics and compliance, information security, and electronic discovery. Together with Cellebrite’s forensic technical director Yuval Ben Moshe, Scott will present during Exterro and Cellebrite’s complimentary webcast, Step Up Your ECA Game Plan with Mobile Device Data Collection.

I took the opportunity to speak with Scott about the need for mobile forensics as part of a holistic e-discovery approach, how privacy laws affect mobile e-discovery globally, and the need for strong policy as a result—no matter the size of an organization.

Christa Miller: Many companies resist collecting mobile device evidence because they see it as redundant, especially when their burden of proof is only preponderance of the evidence, and they must take proportionality and cost into account. What’s the tipping point between collecting enough, and being thorough in building a case?

Scott Giordano: While there is a fair amount of redundancy between what’s already on the network and what’s on mobile devices, much of the information likely to resolve a matter can only be found on the latter—geolocation information, for example.

I can tell you that the first time I saw a Cellebrite presentation, I was made a believer.  The best way to meet the preponderance standard is to identify those few “documents” – pieces of information, really, that succinctly demonstrate to a jury a particular chain of events and merit only one conclusion.

Christa Miller: You’re a Certified Information Privacy Professional (CIPP) in both the US and Europe. How do privacy laws in each region affect mobile devices in the workplace? How do they overlap, and how are they different, especially with regard to BYOD? What might US corporations take away from European corporate compliance, particularly around concepts like “the right to be forgotten”?

Scott Giordano: Employee-owned mobile devices are rapidly being woven into the fabric of U.S. corporate operations via BYOD, but in the EU they’re still considered completely separate and off limits.

As a result, if U.S. multinationals want to use the same model, they’re going to have to take into account regulations at both the EU- and local levels, build policies that adhere to them (including the right to be forgotten to the extent it’s implemented) and deploy if allowable, which is not always a given.

Christa Miller: Some corporate counselors recommend that companies audit mobile devices upon employees’ exits and at other designated intervals. Others shy from collecting BYOD data because they don’t want to be liable for access to deeply private data such as personal health information. Can you give examples of how companies can address the need to protect their own data, vs. the need to protect employees’ privacy?

Scott Giordano: All of this has to be addressed via policy from the introduction of the mobile device into the corporate firewall, otherwise you’ll potentially face different outcomes in every jurisdiction and even then it will likely vary from case to case.  This lack of policy clarity is essentially the reason for the result in the Cotton v. Costco opinion that was handed down this year.

Christa Miller: Smaller companies, including SMBs, may perceive that corporate compliance is only for the Fortune 500. From an infosec and employee privacy standpoint, what steps can these firms take to protect themselves in the event of BYOD-related litigation?

Scott Giordano: SMBs have to take these issues seriously and, again, it goes back to developing policies and setting expectations for both the employer and employee.  Employees often fail to understand that employer data that’s on their devices is still the employer’s property and litigation over privacy and intellectual property can (and often does) get ugly.  Moreover, those devices broaden the corporate attack surface and have to be addressed from that standpoint.  Better to prevent or mitigate it in the first place.

Christa Miller: You are speaking on Exterro and Cellebrite’s upcoming webcast (May 14), Step Up Your ECA Game Plan with Mobile Device Data Collection. What do you hope viewers come away with from the presentation?

Scott Giordano: I hope that they’ll come away with the following:

  1. Mobile devices are rapidly become part of the larger e-discovery universe
  2. Early data- and early case assessment for mobile devices are crucial tasks for litigation success
  3. The time to prepare is now.

Read more about Cellebrite’s perspective in Exterro’s interview with Yuval. To learn more from Scott and Yuval about the necessary policies to defensibly collect mobile data and best practices for speeding up the mobile data collection process, register for Exterro and Cellebrite’s complimentary webcast, Step Up Your ECA Game Plan with Mobile Device Data Collection, airing on May 14.

Leave a Reply

Your email address will not be published. Required fields are marked *