Many of our booth visitors were customers, representing litigation support and forensics specialists who had few doubts about mobile ESI’s merit in today’s e-discovery. Other visiting legal professionals, including attorneys and judges, put a careful and attentive ear to the latest developments in mobile device collection and preservation. All came away with a clear understanding that mobile ESI is relevant, proportional, and important to preserve in any discovery process.
Perhaps at least part of the interest arose from the cases in 2013 that saw companies sanctioned for failure to preserve or produce mobile ESI:
- Equal Employment Opportunity Commission v. The Original HoneyBaked Ham Co. of Georgia Inc. (2013) in which the EEOC was sanctioned for delaying the discovery of text messages and social media account information.
- In Regas Christou v. Beatport, LLC (2013), the court sanctioned the defendant for spoliation, having taken “no steps to preserve the text messages.” (Link to our partner Exterro’s blog post for a good in-depth discussion about this case and mobile ESI in general.)
- In a BYOD-related case, In Re Pradaxa (Dabigatran Etexilate) Products Liability Litigation (2013), Technology Law Source noted: “The court fined the defendants $931,500 for various e-discovery failures and ordered them to produce additional documents and ESI, including business-related text messages on their employees’ cell/smart phones.”
These cases focused on text messages, but a key part of text messages is their metadata. At Wednesday morning’s keynote panel, US District Judge Shira Scheindlin noted that metadata is “intrinsic” to digital documents. In context, she was referring to the fact that these documents cannot be reproduced on paper without losing inherent data. Likewise mobile text messages and chats, as well as images and location data, which can provide valuable insight to employees’ activities outside corporate servers.
Mobile ESI collection in everyday e-discovery
Supporting our technology integrations with solutions like Nuix, Exterro Fusion, Palantir, and others, Nuix CEO Eddie Sheehy wrote:
I think legal providers have finally given up on the idea of an end-to-end eDiscovery solution; they’re happy to pick and mix technologies they can integrate into a workflow, including outsourcing to litigation support vendors. Customers I spoke to said they wanted software companies to focus on the things they’re good at rather than losing their integrity.
We also heard from customers who are regularly collecting mobile devices from exiting employees. Whether the collections are taking place because the company has no mobile device management (MDM), or because employees have found a way around MDM and other security solutions, mobile forensics is helping with internal investigations and audits. Corporate security and IT can reprovision tablets and mobile devices when they have a way to quickly image the devices, and password bypass is especially useful in BYOD contexts.
Are you collecting mobile ESI in your e-discovery and/or litigation support matters? Let us know in comments below!