Written by Doug Austin, Editor of eDiscovery Today.
Piecing together the eDiscovery “puzzle” has become more difficult than ever, with so many new sources of ESI than ever before to manage. In part one of this series, we discussed some resources and challenges associated with social media discovery and in part two we discussed discovery of mobile devices and messaging/collaboration apps. In this conclusion, we will discuss discovery of audio/video files and Internet of Things (IoT) devices.
Audio and Video Files
This category overlaps with others, but I’ve broken it out because it is becoming a lot more important. Since eDiscovery began, you’ve probably always had some audio and video files that were discoverable, but probably not enough to take a systematic approach to review and relevance determination. You probably used the “brute force” method of listening/watching the audio and video clips to determine potential relevancy or attempted to agree with opposing counsel to disregard these files altogether. That will become much more difficult to do as:
1) Widespread use of mobile devices has grown the number of potentially discoverable audio and video files exponentially, and
2) The pandemic has forced many meetings and gatherings normally conducted in-person to be conducted via web conferencing platforms, with many of those meetings potentially recorded. As a result, discovery of audio and video files has become significantly more important as the number of files to analyze for potential relevance has skyrocketed.
To support a potential large scale search and review of audio and video files, the key is the use of tools that can perform accurate transcription and analytics of the files to create searchable text that can help you quickly identify audio/video files that may be relevant. There are some great products out there for that and they’re only getting better. The “brute force” method of reviewing audio/video files simply won’t cut it anymore.
Internet of Things (IoT) Devices
If you’re performing eDiscovery for criminal cases, potentially discoverable ESI could also even include IoT device data for devices such as Amazon Echos, Fitbits, Ring cameras, even pacemakers. I’ve covered cases related to all of those devices in recent years. Collecting data from IoT devices is challenging, to say the least, as many of these devices haven’t been built with discovery of their data in mind. We’ve even seen a couple of cases where parties attempted to subpoena data from Amazon in relation to an Echo that might have evidence related to a crime committed where the Echo was located. Collection from these devices is typically done anecdotally, usually to capture data related to a specific time period or event associated with an alleged criminal act. Craig Ball did discuss a brute force method for collecting data from an Amazon Echo in his Getting Critical Information from Tough Locations guide for self-collection at least from that device. Chances are, we won’t see mechanisms to facilitate discovery from these devices until their potential relevance in cases is much more widespread.
Needless to say, the eDiscovery “puzzle” has more pieces than ever, making it harder than ever to assemble the evidence for your case. And, the puzzles are only getting larger and more complex over time as there are more sources of ESI to address. BTW, we did finally complete the puzzle after several weeks! Discipline, determination and a structured approach to assembling it—by organizing the pieces by pattern, color and eventually shape—enabled us to get it done, just as a disciplined and structured approach combined with developing technology will help you complete your evidence puzzle more quickly and completely.
I want to thank the team at Exterro for the opportunity to be a guest author on their excellent blog—one that I’ve admired for years! Look for guest posts from Ron Rambo of Exterro on my blog, eDiscovery Today, as well!
Doug Austin is the Editor of the eDiscovery Today blog. Doug is an established eDiscovery thought leader with over 30 years of experience providing eDiscovery best practices, legal technology consulting and technical project management services to numerous commercial and government clients. Doug has published a daily blog since 2010 and has written numerous articles and white papers. He has received the JD Supra Readers Choice Award as the Top eDiscovery Author for 2017 and 2018 and a JD Supra Readers Choice Award as a Top Cybersecurity Author for 2019. Doug has presented at numerous events and conferences, including Legaltech New York, ILTACON, Relativity Fest, University of Florida E-Discovery Conference, Masters Conference and many local and regional conferences. Doug has also presented numerous CLE-accredited webcasts.