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Piecing Together the eDiscovery “Puzzle” is More Challenging Than Ever

July 8, 2020

Written by Doug Austin, Editor of eDiscovery Today.

When I was a kid, I loved to piece together jigsaw puzzles. My attention span probably maxed out at puzzles that were 200 to 500 pieces and anyone who loves jigsaw puzzles knows that sometimes the pieces just don’t want to go together, or you get to the end and you find you may be missing a piece (if you’re lucky, it just fell on the floor and you can recover it).

To give us something to do during the pandemic, my wife Paige and I decided we wanted to put together a jigsaw puzzle—the one we bought was 1,000 pieces with a lot of varying designs and colors. We started two weeks ago, we have spent several hours on it and the puzzle currently sits on our dining room table, only half finished. Puzzles are hard! The picture above is what our puzzle is eventually supposed to be when finished.

Today, assembling the evidence for your case in eDiscovery increasingly resembles assembling the pieces of a complex and highly diverse jigsaw puzzle. Since “eDiscovery” became the norm about fifteen years ago, it has primarily consisted of emails, Office documents and images of scanned documents. Until recently, that is. Now, it also consists of mobile device data, social media data, collaboration/messaging apps data, audio and video files, potentially Internet of Things (IoT) device data and more.

One of the best indicators of how the sources of potentially discoverable data have mushroomed is the annual Internet Minute infographic published every year by Lori Lewis on the All Access site that shows what happens on the Internet every minute on average in terms of things like emails sent (190 million), messages sent (78 million sent just via iPhone text, Facebook messenger and WhatsApp alone) as well as activity on various social media sites. It’s really eye opening!

And, much of it is routinely discoverable. Preservation, collection and presentation (for assessment, review and potential production) of these various ESI sources is the biggest eDiscovery challenge facing practitioners today, at least in my opinion.

So, how do you get your arms around it all? Let’s take a quick look at the good news and bad news for several types of ESI, including links to resources to manage that ESI in discovery (where available).

Social Media

The good news is that most popular social media sites provide a mechanism for custodians to preserve and collect their own social media data. Facebook, Twitter, LinkedIn, Instagram and other sites all provide a mechanism to download your information. Many also give you options as to what information you want to include in your download, so if, for example, you want to focus on activity like posts and comments, but not friends/contacts, you can choose which components you want to download for discovery purposes. Craig Ball’s guide Getting Critical Information from Tough Locations provides examples of preservation and collection from several difficult sources, including Facebook and Twitter.

The bad news is that the data typically arrives in a compressed Zip file that may not be easy to navigate through or search. For example, all of your downloaded Facebook posts are located in a single HTML file called “your_posts_1.html”—no breakout of posts individually. Your Facebook photos are given a unique number, but no other identifying criteria (here’s an example of one photo file name from my archive: 15404_913453002001633_6070126261777842837_n_913453002001633.jpg. Good luck trying to guess what’s in that photo! You have the data, but using it may be challenging.

However, social media is one area where there are eDiscovery providers that have focused on collecting social media data in a defensible—and usable—manner. A quick web search of “social media ediscovery tools” will identify several that you can evaluate and consider to support your social media discovery workflow.

Piecing together the eDiscovery puzzle is so complex, it takes more than one blog post to cover it all! Next time, we’ll discuss discovery of mobile devices and messaging/collaboration apps. See you then!

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.

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