Do You Know Where the Data Is?

By: JSS eDiscovery Team

Even with new rules governing proportionality and relevance, preserving and collecting electronically stored data remains an issue in many litigations. Virtually all modern communication is electronic; not just conversations, but all facets of business and personal exchanges.  And the sources of that electronic data continue to evolve.

Just when the eDiscovery industry got a handle on collecting Outlook Exchange Servers, the tech savvy corporations migrated toward cloud based solutions and put another wrench in the preservation and collection processes necessary for litigation. Recent estimates show that 80-90% of businesses use some form of instant messaging platform on their networks, such as Skype or Lync, and mobile device collaboration tools like Slack, to simplify business deals and team communication, while giving Information governance professionals another headache. As people gravitate away from traditional email to app-based communication, preservation of data for litigation remains an issue, and collecting data in a usable format can be even trickier.

Many predict that email will soon become a secondary form of communication, being replaced by messaging tools.  The theory makes sense as we see schools take cursive handwriting out of curriculums and issue laptops or tablets to elementary children. The millennial generation, and beyond, expect instant and constant gratification. Emails simply aren’t quick enough. This is an app-based generation where text messaging is already being replaced with Snap Chats and similar “storytelling” communication tools. Moreover, those using text messaging or another app-based messaging product are far more likely to type something they otherwise wouldn’t consider when using the more “formal” email communication, circling back to the issue of preserving data from these sources.

With the constant emergence of new smart devices, things get even more complicated in the technology arena. For example, privacy issues have become more complicated and precedence as to expectation of privacy has not been clearly set for many new information recording devices. While users are excited about new technology from a quality of life standpoint, they may not be fully aware of the amount of personal data that is being captured. For example, the Fitbit was a huge leap from typical fitness trackers, such as pedometers. Now, wearable data collection technology, such as shoes, tops, and sports bras, come with a built in fitness tracker that syncs back to a mobile app. Today, it seems that every facet of life is being tracked, right down to the cars we drive. Nearly every automobile manufactured for sale in the United States is equipped with a black box, event data recorder, or other telematics system of some sort, recording much more data than a vehicle owner may realize. And now, with the emergence of Amazon Echo, Google Home, and other “smart home” devices, not only is data being recorded, the devices are learning our daily habits. These are just the tip of the iceberg when it comes to technology that compiles data.

So, what does all this mean for you?  Well, that depends.  If you are a plaintiff in a personal injury lawsuit, or an employee under investigation, it may mean a lot to access data revealing your fitness activity over the past few months, or your vehicle records and driving patterns.  But, you might be in the clear if opposing counsel doesn’t know what to ask, or where to look for this potentially relevant data that could cinch their case.  A forward thinking legal team can win cases when they stay current with new technologies, and know the right questions to ask and locations to seek and vet out data from relevant sources.  Corporations can reap the benefits of amended FRCP 37, by keeping a repeatable and defensible preservation plan in place, so long as they know their own data sources and contain employees messaging habits.  While these new data sources may not be relevant in every case, and may not always be at the core of corporate litigation, thinking proactively about issues such as these will benefit legal departments and avoid issues in the future.  Staying on top of tech and how it impacts the legal industry is a far better plan for success than waiting for an incident and reacting to it once it’s too late.  A proactive legal team that is able to navigate eDiscovery methods and align with clients to assist with repeatable and defensible processes can position their clients well in litigation whether on the plaintiff or defense side.  Knowing what to ask, where to look while considering rules of proportionality, and relevance are key ingredients to saving client’s money and minimizing risk of sanctions or other adverse rulings.

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