Data stored on mobile devices--often referred to as Mobile ESI (Electronically Stored Information, e.g. text messages, social media information, call logs, etc.) represents a new important category of potentially relevant evidence, which must be accounted for and, in most cases, preserved during e-discovery.
Maybe only second to email, mobile ESI consists of information that may make or break a case, making it critical for review and assessment early on in a case. However, unlike the 'traditional' ESI, such that is typically found on computer and server hard drives, mobile ESI brings up a new set of challenges for most organizations, from gaining immediate access to mobile data to coping with privacy and separating between private and business related data.
Yuval Ben Moshe, Forensics Technical Director at Cellebrite, is an experienced IT professional with expertise in helping Fortune 500 organizations define and implement processes to extract and analyze data from a variety of mobile devices, including smartphones and GPS devices. Yuval recently presented on Exterro and Cellebrite's complimentary webcast, Step Up Your ECA Game Plan with Mobile Device Data Collection. I had the chance to speak with Yuval about mobile data's role in e-discovery and the complexities organizations are facing in trying to collect mobile data in a defensible and streamlined manner.
Mike Hamilton: In a recent study, Gartner projected that 38% of companies will stop providing devices to workers by 2017. How do trends like these affect the role mobile e-discovery plays within civil litigation?
Yuval Ben Moshe: Whether company provided or employee owned, mobile devices have a constantly growing role in civil litigation as people are doing more and more on them, business-wise and in general. The data kept on mobile devices repeatedly proves itself to be of great value and merit.
Privacy issues have always been a challenge with obtaining data from mobile devices, because most companies allow reasonable personal use even on company issued devices. But when the employee owns the device, new challenges arise. Getting a hold of the device, especially in cases of departed employees, as well as whether the company even has the authority to take a hold of that device, are two examples.
This does not mean, by any stretch of imagination, that mobile devices will stop playing an important role in civil litigation. However, it will put the burden on the company's counsel and litigation support professionals to proactively put a policy in place. This policy should govern both company rights to data on a mobile device, and employee rights to privacy, setting guidelines on how to distinguish between personal and company data.
Mike Hamilton: How do the types of data found on mobile devices differ from those on PCs and why is this data vital to collect for e-discovery purposes?
Yuval Ben Moshe: Many data types residing on the mobile device are unique and cannot be found on a PC or any network server. Subject to the specifics of the case, these data items may carry significant and/or relevant information and hence have to be considered in the collection process. Example of such items are:
- Text messages sent over SMS or one of the many chat applications (Whatsapp, Viber, Facebook Messenger, et al.)
- Emails sent over web based private email accounts and not through the company's email
- Call logs with details of calls made, received, or missed
- Messages sent and received via social networks such as Facebook or LinkedIn
- Coordinates of various locations the device was at or in proximity to
Mike Hamilton: What are the biggest problems organizations incur when they try to collect mobile data?
Yuval Ben Moshe: There are many technical and procedural challenges in that process, however, in my humble opinion, the biggest challenge is more on the awareness and legal aspects of it. The vast majority of enterprises, whether allowing BYOD or still providing company devices, do not have the proper policies in place to regulate and administer for litigation processes. Hence, if faced with litigation, such enterprises either decide to avoid collection from mobile devices and, by that, may miss a lot of important information, or decide to collect mobile ESI and experience a very painful, long and expensive process.
Mike Hamilton: A growing trend is that organizations are asking for earlier insights into data to help with early case assessment. Can you explain why having early access to mobile data is imperative for an accurate early case assessment?
Yuval Ben Moshe: Mobile ESI is no different from other ESI when it comes to ECA. Proper ECA plays into the accurate scoping of the imminent litigation process, allowing more knowledgeable decisions about budgeting, scoping, tooling and planning ahead. With mobile ESI, ECA can also help to determine the list of custodians and their respective mobile devices to be collected, if at all, as well as timelines or specific types of data that can help to limit a search to only the data that is most relevant to a case.
Mike Hamilton: You recently spoke on Exterro and Cellebrite's webcast, Step Up Your ECA Game Plan with Mobile Device Data Collection. What do you hope viewers came away with from the presentation?
Yuval Ben Moshe: Mainly awareness of the growing merit mobile ESI has in civil litigation and the enormous importance of proactive thinking and policy placing for using mobile devices in the workplace, whether BYOD or company provided.
On-Demand Complimentary Webcast
To learn more from Yuval about the necessary policies to defensibly collect mobile data and best practices for speeding up the mobile data collection process, watch Exterro and Cellebrite's complimentary webcast, Step Up Your ECA Game Plan with Mobile Device Data Collection