Computers in Their Pockets

These devices contain a deep and largely unexplored well of data that grows deeper with each use and development cycle. Our clients carry in their pockets ' into and out of their homes and offices ' more personal electronic information than most of us held in our desktop machines just a decade ago. No bigger than a pocket calculator, our devices contain much of our lives reduced to data: call history, instant messages, social posts, voice recordings, video files, Internet browsing histories, multiple applications and associated data, GPS location data, e-mail, images (with identifying metadata) and more.'Much of this data is personal and irrelevant to litigation, some of it is relevant but harmless, and an unquantifiable amount of it is potentially damning due to the informality that pervades our mobile device-driven culture and to widespread misunderstanding of how data is generated, stored and deleted (or not).

All of this data will likely be subject to the next RPD that lands on your desk, and all of it should definitely be part of the next RPD you send out.

Depending on whether you are the proponent of the requests or the respondent to them, you face either a treasure trove of discoverable data or a tidal wave threatening your ability to manage your case. In responding to this, you and your potential opponents have probably relied on two mistaken notions: First, that the data on our mobile devices is more ephemeral, transient and unimportant than the data on our desktops or laptops; and second, that if there is non-duplicative, recoverable data on these devices, then the process of capturing it would still be too expensive or technically challenging to pursue.

As to the first mistaken notion, in the legal discovery world, the persistence of this belief should puzzle us. Attorneys may be notoriously late adopters of new workflow technologies, but what attorney has not conducted a significant amount of her or his work on a mobile device while rushing from one 'important and time-sensitive' appointment to another? If Androids, Blackberrys and iPhones are driving our workdays, these devices (and the data we transmit with them) must also drive the workdays of our clients and opposition. If our clients use their tablets and phones in the same way that we do, then they are agreeing to let their apps record their GPS coordinates and have access to their contacts lists. And, if 'relevance' means roughly 'more or less likely to prove the truth of a fact asserted,' then the information documenting the minute-by-minute activities of their lives will very likely be relevant to litigation someday.

It would not be a wild claim to predict that your next 'smoking gun' document will be found on an opponent's mobile phone. When you think of it this way, it's hard to argue that the data on our mobile devices is ephemeral, transient or unimportant.

As the legal industry (and the corporate world at large) has slowly (and often painfully) learned about our PCs, very little deleted from our mobile devices is actually gone. To put a finer point on it, the frightening truth is that all of the data on all of your clients' phones is likely still sitting there. Just as with our desktops, data on our phones is never actually 'erased.' It is simply 'written-over' ' but not until the capacity of the drive has been reached, and even then it still isn't completely gone. More importantly, if it's not completely gone, someone with the right tool will discover it someday very soon.

Privacy Protection

Granted, some of the discovered information will find some cover from privacy protections.

Certain subject matter may not be admissible due to confidentiality, and much of it will not be relevant. However, even if substantive messaging is protected, message content is not really the treasure trove or tidal wave that we should be concerned with. Instead, we should be concerned with the fact that, in order for our clients' apps to work in the very ways that our clients value, those apps, in essence, have become simply the front ends of lightweight databases that track their every move, their every search and their every contact. We should be concerned with the fact that, if someone has court-granted access to the data on our client's phone and also has a defensible and user-friendly tool that can examine it, they can ' with less effort that it took to write this article ' know where our client went, when he or she went there, with whom she or he connected and how long the connection lasted. Also, it is no longer science fiction to claim mind-reading ability; at least, it can be done with reference to a specific moment in time during which whatever the client was puzzling about was so compelling that they had to Google it.

Data Forensics

This brings us to the second mistaken notion, and, fortunately, to the beginning of a solution to the problem. If we can teach our clients that they can no longer ignore the data in their mobile devices, we can actually turn to capturing that data and making use of it. Today, with the growing overlap between the worlds of data forensics, information governance and legal discovery, the powerful excavation tools that the forensics world has been developing for decades have become more and more 'user-friendly' by incorporating the UI developments of the e-discovery and IG spheres. The latter two, largely dependent on the work of non-expert reviewers, have created increasingly elegant and intuitive interfaces that users can now navigate and update with ease and with minimal training.

Analysis, collection and review of mobile data are no longer prohibitively technically challenging or prohibitively expensive. For example, there are tools that provide the ability to collect and review data from smartphones, 'dumb' phones and tablets. Some tools even allow users to review mobile phone data along with other case data within a litigation review platform. Settings allow reviewers to collect and see only responsive data and ignore personal and private data; which allays a common concern for those dealing with the mingled uses prevalent on BYOD phones. This is groundbreaking technology, on the market and available for purchase, that is easily used by non-experts. So, the technology is here. It is also affordable , usable and more powerful every day.

At this point, the only tool that can truly protect you or your clients' devices from inspection is a hammer ' and that will only be truly effective if you have an ocean in which to dispose of the remains and the skills to defend against the spoliation sanction. The best solution, then, is to be aware of mobile data and its importance and then to be prepared to review and produce it.

Eric Killough is Product Marketing Manager for AccessData. He provides thought leadership, market research and strategic direction. Killough is a Certified e-Discovery Specialist (CEDS), an attorney and a research librarian (MLS).'

As of May 2013, 91% of American adults have a cell phone, 56% have a smartphone, and 34% own a tablet computer (Pew Internet & American Life Project, Trend Data).

Meanwhile, in February of this year, 44% of the more than 1,000 organizations surveyed by Tech Republic reported that they allow their employees to bring their own devices to the workplace (a practice so ubiquitous as to have spawned a buzz-worthy new acronym, 'BYOD'). Another 18% plan to move to BYOD by the end of this year. See, 'Unavoidable: 62 Percent of Companies to Allow BYOD by Year's End.'

Portable Data

These devices contain a deep and largely unexplored well of data that grows deeper with each use and development cycle. Our clients carry in their pockets ' into and out of their homes and offices ' more personal electronic information than most of us held in our desktop machines just a decade ago. No bigger than a pocket calculator, our devices contain much of our lives reduced to data: call history, instant messages, social posts, voice recordings, video files, Internet browsing histories, multiple applications and associated data, GPS location data, e-mail, images (with identifying metadata) and more.'Much of this data is personal and irrelevant to litigation, some of it is relevant but harmless, and an unquantifiable amount of it is potentially damning due to the informality that pervades our mobile device-driven culture and to widespread misunderstanding of how data is generated, stored and deleted (or not).

All of this data will likely be subject to the next RPD that lands on your desk, and all of it should definitely be part of the next RPD you send out.

Depending on whether you are the proponent of the requests or the respondent to them, you face either a treasure trove of discoverable data or a tidal wave threatening your ability to manage your case. In responding to this, you and your potential opponents have probably relied on two mistaken notions: First, that the data on our mobile devices is more ephemeral, transient and unimportant than the data on our desktops or laptops; and second, that if there is non-duplicative, recoverable data on these devices, then the process of capturing it would still be too expensive or technically challenging to pursue.

As to the first mistaken notion, in the legal discovery world, the persistence of this belief should puzzle us. Attorneys may be notoriously late adopters of new workflow technologies, but what attorney has not conducted a significant amount of her or his work on a mobile device while rushing from one 'important and time-sensitive' appointment to another? If Androids, Blackberrys and iPhones are driving our workdays, these devices (and the data we transmit with them) must also drive the workdays of our clients and opposition. If our clients use their tablets and phones in the same way that we do, then they are agreeing to let their apps record their GPS coordinates and have access to their contacts lists. And, if 'relevance' means roughly 'more or less likely to prove the truth of a fact asserted,' then the information documenting the minute-by-minute activities of their lives will very likely be relevant to litigation someday.

It would not be a wild claim to predict that your next 'smoking gun' document will be found on an opponent's mobile phone. When you think of it this way, it's hard to argue that the data on our mobile devices is ephemeral, transient or unimportant.

As the legal industry (and the corporate world at large) has slowly (and often painfully) learned about our PCs, very little deleted from our mobile devices is actually gone. To put a finer point on it, the frightening truth is that all of the data on all of your clients' phones is likely still sitting there. Just as with our desktops, data on our phones is never actually 'erased.' It is simply 'written-over' ' but not until the capacity of the drive has been reached, and even then it still isn't completely gone. More importantly, if it's not completely gone, someone with the right tool will discover it someday very soon.

Privacy Protection

Granted, some of the discovered information will find some cover from privacy protections.

Certain subject matter may not be admissible due to confidentiality, and much of it will not be relevant. However, even if substantive messaging is protected, message content is not really the treasure trove or tidal wave that we should be concerned with. Instead, we should be concerned with the fact that, in order for our clients' apps to work in the very ways that our clients value, those apps, in essence, have become simply the front ends of lightweight databases that track their every move, their every search and their every contact. We should be concerned with the fact that, if someone has court-granted access to the data on our client's phone and also has a defensible and user-friendly tool that can examine it, they can ' with less effort that it took to write this article ' know where our client went, when he or she went there, with whom she or he connected and how long the connection lasted. Also, it is no longer science fiction to claim mind-reading ability; at least, it can be done with reference to a specific moment in time during which whatever the client was puzzling about was so compelling that they had to Google it.

Data Forensics

This brings us to the second mistaken notion, and, fortunately, to the beginning of a solution to the problem. If we can teach our clients that they can no longer ignore the data in their mobile devices, we can actually turn to capturing that data and making use of it. Today, with the growing overlap between the worlds of data forensics, information governance and legal discovery, the powerful excavation tools that the forensics world has been developing for decades have become more and more 'user-friendly' by incorporating the UI developments of the e-discovery and IG spheres. The latter two, largely dependent on the work of non-expert reviewers, have created increasingly elegant and intuitive interfaces that users can now navigate and update with ease and with minimal training.

Analysis, collection and review of mobile data are no longer prohibitively technically challenging or prohibitively expensive. For example, there are tools that provide the ability to collect and review data from smartphones, 'dumb' phones and tablets. Some tools even allow users to review mobile phone data along with other case data within a litigation review platform. Settings allow reviewers to collect and see only responsive data and ignore personal and private data; which allays a common concern for those dealing with the mingled uses prevalent on BYOD phones. This is groundbreaking technology, on the market and available for purchase, that is easily used by non-experts. So, the technology is here. It is also affordable , usable and more powerful every day.

At this point, the only tool that can truly protect you or your clients' devices from inspection is a hammer ' and that will only be truly effective if you have an ocean in which to dispose of the remains and the skills to defend against the spoliation sanction. The best solution, then, is to be aware of mobile data and its importance and then to be prepared to review and produce it.

Eric Killough is Product Marketing Manager for AccessData. He provides thought leadership, market research and strategic direction. Killough is a Certified e-Discovery Specialist (CEDS), an attorney and a research librarian (MLS).'