Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2012-05-15 10:20:48   The DOJ filed the first criminal indictment relating to the BP Horizon oil spill. It had nothing to do with the actual spill, but was actual criminal charges over an eDiscovery cover up. When something really bad happens, it is human nature to want it to just go away. Former BP engineer Kurt Mix seems to have fallen for the same temptation to try and make the evidence disappear as such well known offenders as Arthur Andersen, President Nixon and Rupert Murdoch. Reportedly, Mr. Mix wiped approximately 200 relevant text messages from him smart phone after being notified that his ESI was scheduled for collection. His purported attempt to destroy key evidence in a federal investigation has elevated his role from witness to potential felon facing up to 20 years in jail. So far, the justice department has limited their wrath to Mr. Mix, but Mesa Airlines was found liable for a similar attempted destruction of ESI in In Re Hawaiian Airlines, Inc., Debtor. Hawaiian Airlines, Inc., Plaintiff, vs. Mesa Air Group, Inc., Defendant Case No. 03-00817, Chapter 11, Adv. Pro. No. 06-90026, Re: Docket No. 373 United States Bankruptcy Court For The District Of Hawaii 2007 Bankr. Lexis 3679. I hope that this case raises awareness of the importance of documented preservation protocol, custodian communications, collection technology and compliance efforts. You want to be in a position to demonstrate that the eDiscovery team clearly communicated the external and internal consequences of non-compliance while making reasonable quality assurance efforts. “But your honor, we sent the executive the exact same preservation email every quarter for every case we have. Those notices are six pages of legalese that cover every contingency and ESI source. It’s not our fault that he panicked when we told him we were coming for his iPhone.” Let’s see how far that argument gets you. A read of the FBI affidavit supporting the charges gives us a more detailed insight into the sequence of events. The charges result from two incidents almost a year apart where Mr. Mix was notified of an impending collection by the BP VENDOR and he deleted texts from his iPhone prior to the collection. Apparently, BP’s vendor unsuccessfully attempted to do a remote collection of Mr. Mix’s ESI prior to the physical forensic collection. I have watched clients struggle with the challenges of remote collection in global enterprise environments. Success stories are few and far between, which made my recent interview with Autodesk on their overseas POC collections with Symantec’s Clearwell worth noting. The largest environmental disaster in our nation’s history and the first criminal charges relate to the kind of preservation malfeasance that is unfortunately all too common. The FBI would have never found the deleted text messages (and not all could be extracted) if they had not had Mix’s iPhone imaged. How many smart phone images have you taken for civil discovery? We saw this same behavior when plaintiff’s first caught onto email after the Enron productions. That risk of destruction and spoliation drove corporations to begin Exchange Journal capture of all hold custodians.  Now that employees are working remotely and leveraging social media for business advantages, corporations need to proactively tackle the risk in iPhones, iPads, Blackberrys and all the myriad sources in the cloud. The technology and services to tackle these mobile/cloud ESI sources are evolving rapidly. We have been working hard to expand our new version of the eDJ Matrix website to try and make sense of these new offerings, purchase models and functionality. What do you think is reasonable effort for mobile device collections? Do you need to image them all or just extract the active messages and history? eDiscoveryJournal Contributor – Greg Buckles 

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