By Bill Kammer
Perfect Preservation Letters
Craig Ball, nationally prominent eDiscovery commentator, originally published a suggested preservation letter in 2006, just after the original federal rules amendments. Times and technologies have changed, but attorneys still send letters with much of the 2006 language, especially emphasizing email. Gone are the phonorecords, but now we face mobile devices, social media, ephemeral messaging, and other new types of Electronically Stored Information (ESI).
Craig has now published his new Perfect Preservation Letter at www.craigball.com/Perfect_Preservation_Letter_2020.pdf. Craig begins with the admonition that his model is not perfect for our case, but it would be a good starting point for a review and rewrite of our letters. We can eliminate references to infrequent types of ESI and substitute instead appropriate selections from Craig’s list of 21 ESI types. Always edit our form after reflection on the appropriateness of its contents to our particular cases. And I recommend the inclusion of a willingness to cooperate in setting appropriate limits on preservation and collection efforts.
Mobile Phone Backups
We keep massive amounts of data on our mobile devices, whether Android or Apple. Google One is a cloud storage service launched in 2018 and extended to Android phone backups late last year. Originally Google priced storage at $1.99 monthly for 100GB. Google recently announced that phone backups would be free.
In addition, Google announced an IOS application that allows backup of Apple phones. Until now, you may have been using iCloud for backups but that free storage ends at 5GB. Switching to the Google IOS app will provide a free cache of 15GB to store the photos, videos, contacts, and calendar events on your iPhone. That is the current situation, but Apple may soon meet the competition.
Browser Hazards
We all have a favorite browser, whether Chrome, IE, Safari, Firefox, or some other. Each has available extensions which theoretically increase usefulness. Your browser will direct to its library of extensions, many contributed by third parties. Like anything else on the internet, we must take care in choosing the tools we install. Daugaard recently reported that 295 Chrome extensions could hijack and insert ads in Google search results; 80 million users had installed those hijacked extensions. AdGuard has provided a link to a list of those extensions at https://bit.ly/368vttN. And we can’t forget to always install updates to our browsers because they themselves are subject to attack by the cybercriminals.
Home Offices
Recent reports suggest that the pandemic has altered attitudes about the need to work in a traditional office environment. In this data-driven age, many can remotely execute most practice evolutions. Reports also indicate that many American workers have grown to prefer working at home to their traditional office. Perhaps that explains in part the office vacancy rate in downtown San Diego, which stands at over 35%.
Because of those trends, we must confront the security risks in our home offices. It’s not just the risk of leaving applications and documents open on our remote desktops. For instance, a recent study indicated that home networks are 3.5 times more susceptible to malware than business networks. That report reminds us to pursue all protections that enhance the integrity of our home Wi-Fi networks. Nearly half of the same organizations reported that one or more devices, accessing a network rom home, contained at least one malware infection.
Guidance to perfect protection of a home network would require another article, but you can make an easy start by ensuring that your home network does not have open backdoors (“ports”) that hackers can easily exploit. Security consultant Stan Gibson maintains network tools that can help you identify vulnerabilities including his “ShieldsUP!” port scanning service. His site is safe, so just go to www.grc.com/shieldsup and get started.
COVID-19’s Effect on ESI Data
Precise identification and collection of electronically stored information is key to compliant electronic discovery execution. Craig Ball’s letter list of 21 data types is really a freeze-frame of the present situation. But the present pandemic is affecting the data types that may become key to electronic discovery. Working at home, conferencing on Zoom, and collaborating on networks such as Slack formerly produced minor amounts of potentially relevant data. However, the pandemic world has promoted those data types into a more important source of relevant information. Tools for capturing, collecting, and analyzing those new data types represent new challenges to our ethical discovery responsibilities.
Search Terms
For years, lawyers have used search terms to attempt effective collection of relevant data from the mass of ESI retained by individuals and businesses. Opposing attorneys continue to debate the appropriate search terms and often cannot agree. In a recent Michigan case, the parties had reached an impasse, and so referred the resolution of the issues to their Magistrate Judge. That judge quoted an earlier case: “for lawyers and judges to opine that a certain search term or terms will be more likely to produce information than the terms that were used is truly to go where angels fear to tread.” He then stated that he had “no interest in going where angels fear to tread,” and ordered the parties to attempt agreement stating that they would have to split the cost of an expert if they cannot do so.
For years, attorneys have had disputes of this sort and are often frustrated trying to please everyone. Our lack of experience with stem searches and wild cards has produced some incredible results. In a case involving mining, the parties thought “min!” would assist them in retrieving words such as mining, mines, and miners. They didn’t realize there are about 300 English words that begin with “min.” Before agreeing to any search term of that sort, at a minimum, visit a website such as morewords.com to determine whether your terms are about to harvest too much ESI.
Bill Kammer (wkammer@swsslaw.com) is a partner with Solomon Ward Seidenwurm & Smith, LLP.