Migrated from eDJGroupInc.com. Author: Greg Buckles. Published: 2013-03-05 05:37:02Format, images and links may no longer function correctly. 

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Counsel have always struggled to balance preservation obligations against unreasonable interference in the custodian’s ability to function in day to day business. To put it simply, the preservation effort and user impact has to be in proportion to potential risk of loss and subsequent legal consequences. In the decade since civil litigators and criminal prosecutors latched onto executive emails as key evidence, enterprise emailand archiving platforms have generally solved the preservation vs. impact challenge for email. The corporate BYOD invasion by personal mobile devices has created an even greater challenge without mature technology solutions. Most corporations still rely on custodians to preserve any potential ESI on their smart phones, tablets or home systems. They don’t have a lot of choices unless the matter justifies the relatively extreme expense and effort of incremental forensic acquisitions of custodian devices. Alternatively you could just collect the iPhones at $700 a pop and hand out brand new ones to all of your key custodians. That is how 23% of our mobile discovery survey respondents have dealt with the question. Ouch. At least they would not have faced federal spoliation sanctions like those in Christou v. BeatPort when the CEO lost his iPhone containing text messages that ‘might’ have been relevant to the matter.

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The key facts and findings start on page 23. Judge Jackson ruled on the assumption that the loss was accidental and refrained from an adverse inference jury instruction. However, she hammered the point that, “A commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents”. This is a very different scenario from the criminal charges filed against former BP engineer Kurt Mix for erasing key text messages. However, it is a federal civil ruling that confirms that the content of mobile devices is not exempt from legal holds. I am not taking this ruling as a blanket prescription that requires legal to collect from every iPhone in every case. If the defense counsel had documented a review of the text messages and confirmed the CEO’s assertion that they were not relevant to the matter, the ruling might have been quite different. Judge Jackson did highlight a history of disagreements on relevance, making preservation of the text messages called out in the plaintiffs “litigation hold letter” even more critical.

So how hard is it to preserve text messages or call logs from a smart phone? I used my upgrade to the new Samsung Galaxy Note II ‘phablet’ as an excuse to run acquisitions with a couple mobile device software packages.  Since AccessData and Paraben had provided me evaluation copies, I used Mobile Phone Examiner Plus (MPE+) and Device Seizure to pull selective and full logical images from my iPhone 4s. You could also ask custodians to perform regular backups to a network location, though I would recommend MIS or legal IT support to document/confirm backup settings and your ability to extract information. A certified forensics provider might have charged $500-700 for the acquisition and then an hourly rate to extract the texts, photos, call logs are other information for review. For a single key custodian in a single case, that makes sense. For any matter that might result in criminal or fraud issues, I would always recommend the increased protection of a third party specialist. For normal civil matters with multiple custodians or ongoing, incremental preservation needs, the expense and coordination effort will add up fast.

Acquisition and extraction of the ‘classic’ phone call logs, texts, SMS, voice mail and location logs is relatively quick (2-5 minutes). Full logical acquisition of a 32 GB iPhone will take many hours on any software package. Our analysis of a recent client budget request for training and equipping a single litigation support specialist to perform preservation collections ran $5,500 – $8,500. Now one size does not fit all, even in software. So you need to take a realistic look at your discovery profile and decide how you will meet your obligations when the content of mobile devices is called out in hold letters or discovery requests. If the very question gives you a headache, join the 60% of survey respondents that have had to collect already. This has been such a hot research topic for me that I will be conducting boot camps on Mobile Device eDiscovery in Los Angeles and San Francisco in the first week of April. The LA boot camp on April 2nd will be free to attendees thanks to sponsorship from FTI Technology. l am looking forward to these granular, interactive sessions and sharing more real life stories and solutions with you all. For more information on how to register or sponsor, please contact Marilyn@edjgroupinc.com.

Greg Buckles, eDiscoveryJournal Contributor and eDJ Group Lead Analyst

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