I love it when other eDiscovery bloggers step up to point out industry ostriches. Yep, folks burying their heads in the sand rather than just tackle a tough problem. I read, “A New Paradigm in Mobile Device Preservation” by Craig Ball with glee. I am not an attorney and carefully stay away from anything that could be legal advice. It takes an attorney with balls like Ball to publicly opine that NOT instructing your clients to preserve mobile device content is malpractice. As you read his argument, remember that Craig Ball has been special master or testifying expert (mostly plaintiff) in some very complicated eDiscovery matters. As many of my clients will point out, most of their legal holds fall into well known categories without any issues that they think would involve text messages, browser histories or other unique mobile device content. The conversation goes something like this:
“But did the other side’s discovery request include mobile and cloud content?”
“Yes, but we don’t think it is relevant.”
“Do you have documentation showing that the custodians positively state that it is not relevant?”
“Well not exactly. But they did not say that it was in their questionnaire.”
“Have you sampled the content of any key custodians to verify?”
As a non-attorney, I don’t have any opinion on what is or is not malpractice. I do have expert opinions on reasonableness of preservation efforts. I believe that there are legal holds that do not require preservation of mobile or cloud content. But I want to ‘trust but verify’ before I sign an affidavit for my clients to that effect.
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Stay skeptical my friends!
Greg Buckles wants your feedback, questions or project inquiries at Greg@eDJGroupInc.com. Contact him directly for a free 15 minute ‘Good Karma’ call. He solves problems and creates eDiscovery solutions for enterprise and law firm clients. His active research topics include analytics, mobile device discovery, the discovery impact of the cloud, Microsoft's Office 365/2013 eDiscovery Center and multi-matter discovery. Recent consulting engagements include managing preservation during enterprise migrations, legacy tape eliminations, retention enablement and many more.
Greg’s blog perspectives are personal opinions and should not be interpreted as a professional judgment. Greg is no longer a journalists and all perspectives are based on best public information. Blog content is neither approved nor reviewed by any providers prior to being posted. Do you want to share your own perspective? eDJ Group is looking for practical, professional informative perspectives free of marketing fluff, hidden agendas or personal/product bias. Outside blogs will clearly indicate the author, company and any relevant affiliations.
Mobile Device Discovery