By: Greg Mazares – ModeOne
May 3, 2023
Post-pandemic business operations for thousands of companies have evolved into a collection of remote workers bonded together by mobile devices and other emerging technologies. Today’s electronic discovery services require tremendous focus on short message applications and videoconferencing collaboration tools such as Zoom, Teams, and Slack. Certainly, evidence for litigation, corporate compliance, and investigations has evolved over two decades from paper records to the digital data age and more recently to heavy volumes of SMS content. This change has created the need for new technologies and processes in forensic evidence collection and data management.
Smartphones Shift the eDiscovery Landscape
Remote workers extensively use their smartphones and other mobile devices to conduct business. Today, there are over 8.6 billion active mobile devices worldwide. In the United States alone, there are 307 million smart phone users, and moment-by-moment they are collectively contributing to the large volume of potential evidentiary data. Mobile device data grew to almost one Zettabyte – which is one billion Terabytes or one trillion Gigabytes –by the end of 2022. Obviously, that’s a lot of information that will contribute to litigation evidence, internal investigations, and corporate compliance monitoring.
Law firms and their corporate clients can no longer afford to maintain the “collect everything” mindset in dealing with information on mobile devices storing an individual’s most private and personal data. Smartphone data will, without a doubt, represent a larger proportion of total eDiscovery data over time.
Corporate legal and outside counsel teams are now faced with a new challenge. They must address the growing importance of data stored on mobile devices in the new remote work society. Law firms and their corporate clients can no longer afford to maintain the “collect everything” mindset in dealing with information on mobile devices storing an individual’s most private and personal data. Smartphone data will, without a doubt, represent a larger proportion of total eDiscovery data over time.
Data Collections Strategies Must Evolve
As mentioned, in the early days of the digital revolution, the “golden rule” for data forensics and evidence collection was simply to “collect everything.” This approach became the standard practice because legal teams lacked the tools and technology to focus on particular ESI data sources. They had no precise way to limit acquisition to highly relevant data and exclude non-responsive, non-relevant data. This led to acquisitions of large volumes of digital data that attorneys and their document review teams were challenged to sort through, document by document, under intense deadlines. It also created problems with protecting the privacy of custodian data, led to delays in “time-to-facts” delivery to attorney case teams, and materially increased cost of data collection per phone.
New Demand for Targeted Data Collections
Traditional techniques in forensic data collections have proven to be expensive, labor-intensive, and time-consuming. They normally resulted in a large volume of billable hours, higher travel costs, and substantial overnight delivery charges. Plus, “collecting everything” results in higher processing, hosting, and review charges. Thankfully, legal technology entrepreneurs are developing new and efficient solutions and workflows. Such game-changing technologies are automated, remote, fast, and materially less-expensive. Elimination of the need to utilize physical collection kits represents a huge process and time-saving enhancement.
Building Better Best Practices with Targeting Technologies
Over the past two decades eDiscovery was much like finding a needle in a haystack. If a custodian device was determined to be relevant to a particular matter, attorneys generally reviewed all the data stored on the device to find relevant information. Today’s innovations include advanced software which can target key data types and exclude other private and extraneous information.
A targeted collection strategy helps attorneys avoid over-collecting custodian data while simultaneously reducing the much higher cost of downstream processes associated with managing eDiscovery for processing, hosting, and document review.
Targeted Data Solutions for Smartphones
Smartphones contain emails, phone call history, calendars, reminders, contacts, text messages, GPS and location information, Web search and browsing activity, social media apps, communications apps (such as Teams, Slack, and Zoom), entertainment apps, photographs, audio and video files, and retail applications, among other data types. And that’s where the challenges with smartphone data only begins.
A commitment to targeted data collections represents the most defensible way to avoid acquisition of private, non-relevant information.
Smartphones hold a ubiquitous position in society. As they become a more significant part of our daily lives, there is little distinction between “business” and “personal” use of these devices. For eDiscovery, the clear proliferation of smartphone data adds to the complexity of dealing with mobile devices. Attorneys are demanding and searching for new technologies to facilitate targeted, fast, affordable, and secure collection of data from iOS and Android phones anywhere in the world.
Targeted data acquisition is the best approach to collecting relevant information in matters that do not require testimony from a forensics expert. A commitment to targeted data collections represents the most defensible way to avoid acquisition of private, non-relevant information. Additionally, targeted collection best supports proportionality by significantly improving delivery speed (i.e., reducing “time-to-facts”) for trial teams while reducing overall cost.