Blog: The Challenges of E-Discovery in a Mobile World

In 2016, almost 5 billion people owned a mobile phone – that’s over 60 percent of the world’s population. This figure was expected to rise to 67 percent by this year and will continue to grow exponentially as smartphones become easier and more affordable to buy.

In workplaces all over the world, smartphones are being used to communicate and store data. Because of this and various other factors, mobile devices are a frequently discussed topic in the eDiscovery market because they create new, unprecedented challenges that range across the EDRM (Electronic Discovery Reference Model). There is a growing challenge to collect, search for, process, and produce electronically stored information for purposes of discovery. Here are the most significant challenges that eDiscovery professionals face in an increasingly mobile-centric world.

Rapidly advancing mobile devices

Cellular carrier services and device manufacturers subsidize mobile products, so users can replace old devices with new versions on a regular basis, making it easier for users to buy the latest smartphone models.

During this shrinking ownership period, smartphones also undergo frequent software updates that reset applications and the operating system. In many cases, these updates are pushed automatically, taking mere minutes to complete. Thousands of mobile devices get an update every day making it more difficult for forensic data to catch up. Developers need to engineer new data storage methods that assist in safe preservation and collection of mobile device data.

Bring Your Own Device (BYOD) policies

One major challenge that eDiscovery professionals face is identifying user-generated data, which can be complicated by BYOD policies in modern offices. Since highly relevant data from mobile devices can be in different areas other than embedded memory, the process has become more complex.

In addition, there are far more file formats used to store data than before, which adds to the mix of problems. Hence, data identification challenges greatly differ from the types associated with conventional electronically stored information sources.

eDiscovery professionals also must assess what is or isn’t potentially relevant data. This is no easy feat. Extraneous factors must be considered because of increased functionality of mobile devices and third-party applications.

Data collection cost

When devising an effective strategy to collect data from mobile devices, cost implications must be considered. Collecting user-generated information is a costly process. In LOGICFORCE’s experience, vendors’ pricing for mobile device imaging can range from $500 – $1500 or more, depending on the type of device and the amount of data on it. Multiply that across an organization of 100, 200, 500 employees with mobile devices, and the costs compound quickly.Deleted information may be unrecoverable in certain mobile devices, disrupting the investigative process.

The review and processing stage has its own set of challenges when certain files need to be converted to a different format for assessment. Conversion efforts rack up heavy expenses.

The existence of multimedia files including video and audio, can further inflate expenses because a native, contextual review is required.

Mobile data preservation under the 4th Amendment

With more workplaces adopting BYOD policies, eDiscovery professionals must keep Fourth Amendment implications in mind during the collection process. Are employees who use their personal phone for work-based communication and tasks entitled to more privacy than with company devices?  These expectations mold any mobile device data collection and preservation strategy.

To effectively preserve user-generated data, eDiscovery experts need to fully understand a device’s capability and its user functionality. For instance, did the user keep separate devices for work and personal purposes, or did they use the same one? If so, to what extent is the data separated?

Other factors like remote wipe commands and password protection must be evaluated because of the immense risk that data loss poses to the eDiscovery process. Failing to put the right preservation efforts in place negatively impacts the collection effort.

Cloud storage and social media

Cloud storage and social media make up a complex web of data that is normally collected using distinct protocols. A mobile device is a crucial access point for a user’s cloud storage and social media data.

Social media information and cloud-based storage can provide significant details for a case.

However, this is also subject to the length of time cloud storage providers retain information, deployment of adequate tools for collection, and establishing control and custody of data.

Plethora of message types & applications

We’ve come a long way from SMS messages. Most people nowadays use third-party or proprietary applications to communicate with others, store different multimedia formats, and save messages.

Applications like Snapchat, Facebook Messenger, and WhatsApp have heavily diversified the landscape for communication and messaging. Now, it simply isn’t enough to submit an eDiscovery collection request that targets messages.

eDiscovery professionals need to know what messaging platforms a user has on their phone and what potential information can be found in the platforms to make the process of collecting the device defensible.

In some instances, the metadata, data that provides information about other data, related to mobile device data formats makes collection difficult. Text message documentation is typically inconclusive and fragmented because the device does not record when a text message is first read and if it’s erased from the device, the record will be incomplete. Based on the investigation, this metadata may prove crucial.

Different tools and collection strategies must be employed based on the amount and type of data collected from proprietary applications and mobile devices. Using uncomprehensive collection mechanisms can lead to missing or incomplete information, despite the data being in the applications.

Conclusion

Mobile devices are no longer inanimate objects that offer convenience. They’re an extension of people and their interests. Although forensic toolkits that can capture data are becoming more popular, eDiscovery professionals and legal practitioners face certain challenges to keep up with rapidly advancing technology and the costs of collecting important data from them. 

Genta Spaho is a Senior eDiscovery Project Manager at LOGICFORCE, where she manages and plans eDiscovery projects, including identification, preservation, collection, processing, analysis, review and production of ESI and paper documents. 

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