For maybe 10 years, the majority of the most discoverable electronically stored information (ESI) has been email and its attachments. (Though you may remember past suggestions to skip email discovery.) Attorneys have come to grips with methodologies for email preservation, collection, review and production. Unfortunately, technology may be changing faster than attorneys can adjust their methodologies to properly execute their eDiscovery evolutions.
Some commentators suspect that the majority of information in personal and business collections will now be found in text messages, which reside on phones and occasionally on tablets. Although the carriers provide the pipelines for texts, they have little incentive to preserve the content of those messages or to get involved in eDiscovery evolutions. They may preserve some primary metadata for a limited amount of time, but that’s about it. Consequently, the preservation and collection of relevant texts usually occur at the device level.
To collect and process that information, attorneys face new challenges and increasing costs. For starters, take the responsibility to preserve. A recent survey found that 31% of companies do not provide mobile devices to their employees, while 52% employ a hybrid approach, outfitting only limited staff but relying on personal devices for all others (a BYOD policy). A 2015 study found that 80% of people use texts for business so that ESI may only reside on personal devices.
The relevant texts on those mobile devices must be preserved to execute an effective legal hold. That can’t be done at the enterprise level and must be executed by every custodian of a device. Those persons will not be enthused if asked to surrender their phones, even if only for a period of days. Collection from the device generally requires physical proximity unlike remote collection from desktop and laptop computers. There are developing alternatives such as expensive cloning of the phone or using a cloud-based backup copy from Google or the iCloud.
Past collections from desktops and servers slowly became routine. Most of those devices used the same operating systems and software, and the file types were fairly limited. However, mobile devices come from numerous manufacturers, run software of various generations and store files in different configurations. This requires forensic vendors with multiple tools and relevant qualifications. Harvesting ESI from the devices requires tools that most lawyers don’t possess, so that forces recourse to vendors who seem to face little price competition. Charges are usually per device, and the vendors need physical proximity and possession for several days.
There are basically three methods to extract the data from a mobile phone: physical, file system and logical acquisition in order of quality. The best one — physical — requires the most time, often much longer than copying a hard drive with far more storage. Physical and file system only produce a big block of binary data that must be broken down into the files and information of interest.
After all these challenges are met, the output of the collection presents the next issue. Even after a successful collection, the ESI must be reviewed. Unfortunately, the output is usually in a single PDF or spreadsheet. The reviewer can examine their contents on a desktop or generate a readable printout. Attorneys have relied on familiar review platform tools such as Relativity, Concordance and Summation for years. Only recently have we gained some incorporated technology that can transfer mobile device data into those traditional platforms.
Finally, production produces similar challenges. Provision of the collected text messages in “native” format or as a single document simply transfers these challenges to the requesting party. Printing them out or producing the data as petrified files is a return to the Stone Age.
Attorneys will sort over time because the shift from emails to texts is accelerating, particularly among younger users. Some analysts believe that 95% of users communicate by text, and mobile device case law is rapidly developing as a consequence. There is no reason or excuse to skip the ESI found on mobile devices: clearly text messages are electronically stored information within the meaning of any rule. Plus, courts have generally enforced the common eDiscovery obligations in cases involving mobile phones.
These issues are not insurmountable problems, but simply new challenges we must cope with. The key will be our ability to stay alert to these developments and still competently discharge our responsibilities to our clients and the courts.
Bill Kammer is a Partner with Solomon Ward Seidenwurm & Smith, LLP.