Don’t be dumb about smart phones?
Do you have a way to get texts, chats, emails and documents off of mobile devices?
• 91% of Americans have cell phones.
• 56% of Americans own smartphones.
• 35% own tablets.
• 74% of companies allow BYOD.
• 89% of employees have mobile devices connecting to corporate networks.
• <10% of organizations are “fully aware” of the devices accessing their network.
• What Are You Doing for Mobile E-Discovery?
Mobile devices (smart phones, dumb phones, tablets) contain a deep and unexplored well of data. Your clients carry in their pockets more electronic information than most of us held in our PCs just a decade ago. Call history, IM, social media, voicemail, videos, chat, browsing histories, apps, GPS location data, e-mail, images (with identifying metadata) are just a few data types on a typical smart phone. Much of this is irrelevant to litigation, but an unquantifiable amount is potentially damning due to the informality that pervades our mobile device-driven culture and to widespread misunderstanding of how data is generated, stored and deleted (or not).
All of this data will likely be subject to a future RPD that lands on your desk, and should arguably be part of the next RPD you send out. Depending on whether you are the proponent of or respondent to these requests, you face either a treasure trove of discoverable data or a tidal wave threatening your ability to manage your case.
In responding to this idea, you and your potential opponents are probably relying on two mistaken notions to give you a ‘pass’ when it comes to mobile e-discovery: first, that the data on mobile devices is more ephemeral and unimportant than the data on desktops or laptops, and second, that even if there is non-duplicative data on smart devices, the process of capturing it is still too expensive or technically challenging to pursue.
As to the first mistaken notion, in the legal discovery world, the persistence of this belief should puzzle us. Attorneys may be notoriously late adopters of new technology, but what attorney has not conducted a significant amount of her or his work on a mobile device while rushing from one “important and time-sensitive” appointment to another? If Androids and iPads are driving our workdays, these devices must also drive the workdays of those subject to litigation.
As to the second notion, collection and analysis of mobile device data are no longer prohibitively technically challenging, nor are they prohibitively expensive. There are tools that provide the ability to collect and review data from smart phones, ‘dumb’ phones and tablets - tools that allow users to review mobile phone data along with other case data in a litigation review platform. Settings even allow reviewers to collect and see only responsive data and ignore personal and private data; which allays a common concern for those dealing with the mingled uses prevalent on BYOD phones. This is groundbreaking technology, currently available for purchase, that is easily used by non-experts.
At this point, being an ostrich with your head in the sand with regard to mobile e-discovery is not a good strategic position. The only tool that can truly remove mobile device data from the e-discovery equation is a hammer – and that will only be truly effective if you have the skills to defend against the spoliation sanction. The best plan, then, is to be aware of mobile data and its importance and then to be prepared to collect and/or analyze it.
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