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In Mobile E-Discovery, Tech Often a Barrier and Privacy Frequently Blurred

 
(Article originally published in Legaltech News by Ricci Dipshan on June 9, 2016)

Beyond encryption, mobile e-discovery faces challenges with data retention, inaccessible custodians and ineffective BYOD policies

For all the ways technology has revolutionized discovery, the advancement of mobile devices has almost stopped it dead in its tracks. Though the FBI’s legal battle with Apple is a pivotal moment for mobile e-discovery, the challenges of this practice go beyond recalcitrant manufacturers and encryption. For mobile devices are never used in a vacuum, and during discovery requests, attorneys have to consider everything from privacy regulations and organizations’ “bring your own device” (BYOD) policies to each single data custodian’s specific station.”

On a very simple, basic level, if you have to discover information, and that information happens to be on mobile devices around the organization,” said Galina Datskovsky, CEO of Vaporstream, “one of the challenges you clearly face is getting the device to come back into the organization to begin with. And that can be quite a challenge.”

Given corporate servers and cloud infrastructure, however, there are inevitably times when “discovery doesn’t have to go back to your device, because I’m creating a record and putting it in my secure archive, and that’s where I’m going to go to pick up the data,” Datskovsky added.

But the reality is far more complex, for not all mobile e-discovery data and apps are made to sync up to external servers. “The devices are unique,” Datskovsky explained, because “there are things that only reside as mobile apps, like, for instance, text and chat or certain apps that may be apps that only reside on the device,” and save data locally.

This in turn makes discovery a uniquely manual experience, where much depends on the data custodian’s ability or desire to give up the device. This can make for a difficult situation, “especially if it happens to be an employee who left or quit or is not cooperative. And, yes, there are subpoenas and things you can issue but it just makes the processes fairly difficult,” Datskovsky said.

“What’s interesting is that to actually collect the device one literally just has to ask the person for its password,” said Adi Eliott, vice president of market planning at Epiq Systems. He added that the discovery process largely relies on custodian interviews, such as those “asking them what do you use to talk about business, what apps you discuss this matter or this situation on, and then you have to physically get their device, and that container has all the corporate data. Then on which apps to use to talk about business, primarily like email. If there’s an internal instant messenger app that’s officially sanctioned, use that, etc. The problem is that it’s not necessarily how humans work. The friction that is required to record and communicate is almost nonexistent,” Eliott explained.

“Even anecdotally if you think about it, if you and another person you know have WhatsApp, whether you’re talking about personal or business, you’re highly likely to fall into WhatsApp, if that just happens to be something you use because, there’s no friction to it and you both have the app,” he said.

Additionally, “We don’t compartmentalize our communications anymore between business and personal,” Eliott said. “Socially, I’m more likely to be doing something personal at work and I’m definitely more likely to be doing work on my personal time and asking us to compartmentalize by app is largely a human and a social challenge more than it is an e-discovery challenge.”

Privacy, By Any Other Name

The blurred lines between private and business data create situations where “if there is discovery done on a device that is owned by to the corporate network and you sign something that said generally that the corporation has access to it, people don’t question that largely.

“And part of this is just social and the way Americans think, they are very likely to give up their password when asked and let their device be collected from. And in Europe it very much has to be contemplated deeply because and there are some cases that have been decided about who has the right to the phone and the privacy rights … but it’s still an emerging set of cases that we are seeing.”

Eliott added that with privacy issues, “in the U.S., things are evolving. … It’s being talked about more,” especially after the Apple and FBI legal battle.

“The conversations are being raised in a way in which they before, and my opinion is that when you see conversations raised like this, there are generally downstream consequences from the consciousness shifting on an issue. And we don’t yet know what that is going to be,” he said.