Dear Reader, welcome to “Virtual Canary in the Digital Mine”. My name is Eric Killough. I am a JD and E-Discovery geek who works for AccessData. And I will be your virtual canary for the next few months. This is the first in a series of articles wherein I will sing of the increasing dangers of neglecting to take an interest in E-Discovery as new technologies, new forms of relevant documents and new judicial sanctions continue their attempts to use all of the oxygen in our digital data mines. But, fear not, the onward press of technology that drives this crisis is also driving solutions. And, ultimately, I’m here to talk about solutions. Tweet, tweet.
As of January 2013, 87% of American adults have a cell phone, 45% have a smartphone and 31% own a tablet computer (Pew Research Center). Meanwhile, more than 44% of 1,000+ organizations surveyed by Tech Republic allow their employees to bring their own devices to the workplace – a practice so ubiquitous as to have spawned a new acronym, “BYOD” – and another 18% of those surveyed plan to move to BYOD by the end of this year. These devices contain a deep and largely unexplored well of data that grows deeper with each use and development cycle. We carry in our pockets more personal electronic information than most of us held on our desktop machines just a decade ago: call history, instant messages, social posts, voice recordings, video files, internet browsing histories, applications and their data, GPS data, e-mail and more. Guess what? It’s all going to be a part of the next RPD that lands on your desk. And it should probably be part of the next RPD you send to the other side.
Until now, we’ve lived in collective blissful ignorance of this treasure trove of discoverable data. In order to do so, we have relied on two delusions. One, we’ve believed that the data on our mobile devices is more ephemeral and transient than the data on our desktops or laptops. Two, we’ve believed that, if there is recoverable data from these devices, the process of capturing it would be too expensive or technically challenging to pursue it (or for our opponents to pursue it).
In the e-discovery world, the persistence of these beliefs should puzzle us. Attorneys may be notoriously late adopters of new technologies to improve their workflows, but what attorney (or law student) has not conducted a significant (if not a majority) amount of her work on the fly, on the run, at home or in the car while rushing from one “important and time-sensitive” appointment to another? If Blackberries and iPhones are driving the workday of attorneys, it’s a sure thing that these devices (and the data we transmit with them) are also driving the workdays of our clients, coworkers and opponents. Just think of the data that’s hanging out in your own device: emails to co-workers, histories of financial transactions, information casually disclosed to non-co-workers about your workday, off-the-cuff searches for random answers to random questions from your commute or latest team meeting. Doesn’t it follow then that, with BYOD so prevalent, it’s also a sure thing that your next smoking gun will found on an opponent’s mobile phone? Or, perhaps that your next opponent’s next smoking gun will be found on your client’s mobile phone? You simply cannot risk not knowing what’s there anymore.
If you still aren’t convinced, consider for a moment the data stored in just a single app on your phone: conducted searches, notes entered, GPS coordinates tracked. Now consider not just the other apps you currently use but all of the other apps that you have installed, set-up, tried for a while, and then deleted. As we’ve slowly (and often painfully) learned about our PCs, very little deleted from our mobile devices is actually gone. What this means for you and for your clients is a subject we will continue to cover and discuss in the near future. For now, you should find it discomforting enough to know that the data is there and that your opposition may be asking you for it soon. And, hopefully, the discomfort will motivate you and the rest of the profession to look for help quickly.