By Jim Gill
In a recent survey conducted by Exterro, we asked 400 e-discovery practitioners to rank the top 5 most controversial e-discovery issues that corporations and law firms are facing today. Now we're digging deeper with a 5 part webcast series based on the results.
The #1 topic that respondents listed was Preserving/Collecting New Data Types (structured data, social media, mobile, etc). So we've partnered with Antonio Rega and Berkley Research Group, for our first webcast which will air January 21st at 1:00PM ET / 10:00AM PT.
This week, Mike Hamilton, senior marketing manager for Exterro and moderator of the series, caught up with Antonio to ask a few questions preparing for the webcast. Here are a few of the answers from that conversation:
MH: In a recently conducted by Exterro, 400 IT/legal professionals stated that the most controversial e-discovery issue they face at their organization is "preserving/collecting new data types." Why do you think this was the case?
AR: It's an understandable result due to increased usage of cloud-based/mobile messaging applications (among other new media types) within organizations. As such services have become more ubiquitous in the workplace, added emphasis needs to be placed in not only formulating a game plan when discovery needs arise, but also the numerous steps involved prior to discovery, namely: identification of new data sources, managing access (and restrictions) to these new sources once approved for usage within an enterprise, setting appropriate policies, and then coming to agreement on any logging/archiving/monitoring that may need to be applied.
MH: Which data types/sources out there are e-discovery practitioners most at risk for potentially missing out on?
AR: Chat messaging embedded within applications – such as Skype or even Salesforce – are prone to being missed if not logged or tracked by IT (or, if not properly fleshed out during scoping discussions). Similarly, although mobile devices are increasingly included in discovery/investigative scoping discussions, there remain certain mobile chat message apps – such as WhatsApp – that aren't always necessarily extracted without additional interrogation of the resultant mobile device image. Even when chat communications are captured and made discoverable, emojis (a pictograph included within a text message), emoticons, and other 'visual depictions' within text messages may add important context to a string of communications and can easily be overlooked (at times this is due to challenges in rendering such characters; at other times they are simply deemed irrelevant/unimportant).
Lastly, audio-based communications, such as voicemails stored on office phones or mobile devices, can often be missed. Some or all of the above examples may not always necessarily be relevant to a given discovery/investigative need, but it's important to consider them regardless.
MH: New data sources are constantly emerging - are there any data sources that you predict will be going away or becoming less relevant (e.g. backup tapes, paper, etc.)?
AR: I've heard suggestions that standard work email may become near-obsolete within the next 5 years, pushed aside for increasingly robust and intuitive messaging applications. However accurate that prediction may be, on the other end of the spectrum, 'hard paper' or tape-based backups (to provide just two examples) may indeed be less prominent today – and increasingly less so in the years to follow -- such 'media' may still be responsive to a given discovery or investigation depending on the scope of an inquiry. Another example may be the retention policies in place in an organization (which raises another point about defensible disposition of legacy or other data no longer confined to holds or regulatory/compliance needs, but that's another topic entirely). In short, it's always important to have a clear understanding of a given organizations environment whenever assessing discovery (and subsequent collection, review, production) needs.
MH: How would you advise legal professionals for staying on top of new data sources?
AR: There are periodic surveys, presentations, and articles that discuss/provide insight into new trends in workplace communication/productivity. You can also reach out to key stakeholders (IT, Legal, HR) within an organization for their input. Of course, seeking the advice of experts in the field to assist in interpreting the increasing volume of information on this topic would be advisable as well.
Data no longer resides just on email servers or your laptop or mobile phones. Data resides in the cloud, in apps, on social media, in your watch or fitness tracker. In this complimentary webcast, learn how to answer these new e-discovery questions:
Are BYOD programs enough to protect my company?
What should I do about new data forms like emojis, gmail, and instant messages?
What does the court expect us to preserve when it comes to these new data types?