Your email is blowing up. Your phone is buzzing. You are not even done with your commute and you've already lined up two conference calls, a chat session and a cooperative exchange of Google Docs. You know you are forgetting something so you flip to your to-do list app, then your calendar, then back to your to-do list. And finally you remember that it’s in your reminder app. You want to throw your phone out of your car but you are also terrified of that thought because your phone is your office when you’re away from your desk.
Mobile devices are everywhere.
Mobile communications ceaselessly unfold between co-workers, employees and employers, husbands and wives, friends and family, strangers and virtual acquaintances. According to some recent statistics from the Pew Internet Research Group, 87 percent of Americans have cell phones, 46 percent own smartphones and 31 percent own tablets, but many more are planning on purchasing a tablet in the next year. In July 2011, forecasters predicted smartphones would reach 1 billion in annual sales by 2016. By December 2012, that number had more than doubled to 2.2 billion.
Protecting the Mobile Gold Mine
Each of these devices can hold a truly staggering amount and variety of data. Highly sensitive and possibly impulsive emails between business contacts, privilege-piercing accidental replies-to-all, calls to competitors, calls to colleagues, contacts with personal notes or nicknames, text messages about the boss, text messages about the delayed product rollout, photos of kids, photos of dogs, photos of confidential documents, even GPS data -- all of this is potentially sitting on any of the billions of devices out there as a gold mine of discoverable evidence.
Are e-Discovery software and service providers making tools that allow civil law practitioners to collect data from smartphones, i-devices and cell phones quickly and easily? What do they cost? And how do users review the data once it is collected? These tools do exist in the criminal law and especially law enforcement worlds, but do they apply to the corporate legal department or law firm?
Well, mobile device discovery is coming to the civilian world whether we are ready for it or not. While we have all indulged in a collective and baffling refusal to either pursue or curtail this information, engineers have been quietly creating the skeleton keys that will unlock it and designing them to be increasingly simple to use and affordable.
Meanwhile, corporations’ Bring Your Own Device (BYOD) policies, along with the proliferation of work outside the office -- whether while traveling or working from home -- mean that organizations have less and less control over what goes on (and comes off) the mobile devices used in the course of business. This makes it difficult to ensure that the data available on mobile devices is also available via other sources of electronically stored information, which would make the devices themselves undiscoverable.
As a result, there are two threats that every business and every attorney should fear: One, that they do not find the valuable information that their opposition has sequestered (intentionally or inadvertently) on an employee’s phone, and, two, that their opposition finds valuable information on their own employee’s phone. And with all the mingling of personal and corporate data on one device, these data sources are rapidly becoming indispensable not only for lawsuits related to the course of the company’s business, but to more HR-flavored matters as well.
Planning for Mobile e-Discovery
Since it is now as likely (or more so) that smoking gun evidence will be found on a mobile device rather than in a PST file, legal practitioners need a plan for incorporating mobile devices into their discovery processes. Cell phones and tablets must be included in the dragnet when preserving and collecting data in anticipation of litigation. Legal teams must develop workflows and acquire technology that makes it possible to get the discoverable data off these devices for review. If they choose to ignore such devices, they are essentially neglecting their duty to zealously and effectively provide their clients with competent representation.
The tools long used by law enforcement and forensic practitioners are slowly but surely becoming available to corporations and legal teams dealing with collection from iPhones, Androids and BlackBerrys. Traditionally deployed in the field or in evidence labs, these tools can be scaled to work in the civil arena as legal teams collect and review data from their own employee devices and from those received as discovery responses.
Here is your bottom line: Your Smartphone and the smartphones of everyone you care about and/or work for are subject to subpoena and to discovery and increasingly powerful forensic analysis. They contain a rich variety of data and breed the sort of informality that leads to case-cracking evidence.
Mobile devices are the next big source of discoverable data, and lawyers or employers who ignore them do so at their own peril. So, go ahead, finish your call. Send that last text. Reach your destination and turn off your GPS. Power down and put your data to rest for a while.
Just do not forget that someone out there already knows how to get it. And soon, the judges are going to know too.
Title image courtesy of Damien Cox (Flickr) via a Creative Commons Attribution-NonCommercial-NoDerivs 2.0 Generic License
Editor's Note: Read more about the implications of the mobile workforce on e-Discovery in Bracing for the e-Discovery Dangers of BYOD