Modern Challenges and Key Takeaways – eDiscovery Investigations Series, Part 5

A multi-part series discussing the realities of eDiscovery in the context of investigations

“I never look back, darling.  It distracts from the now.”
–  Brad Bird, The Incredibles

In the first Part of this series, we reviewed the categories of investigations in which companies are frequently involved and their general eDiscovery ramifications.  In the second Part, we discussed the need for speed and secrecy and ways to achieve them.  In the third Part, we reviewed the need for nuanced analysis and review and available tools and techniques for it.  In the fourth Part, we reviewed the need to be prepared for later litigation. In this final Part, we discuss some modern challenges and key takeaways.

Modern Challenges in eDiscovery Investigations

We have talked before about the endless evolutionary march of consumer technology and the challenges it poses in litigation.  New devices and methods of communication are developed regularly, and popular ones are adopted by consumers rapidly.  No one got in trouble for failing to preserve text messages, until they did and did and did.  The same thing was true for social media, and it will soon be true for some other, newer technology.  In the investigations context, concerns about spoliation sanctions may not apply, but losing – or missing – the information you need for your investigation is still an undesirable outcome for the organization.

Mobile Devices and BYOD
Mobile devices are a growing challenge for both litigation and investigations.  Mobile devices – smartphones in particular – have become ubiquitous for both personal and business life.  Like all consumer technology, there are a plethora of models and types available, and new ones are released by each maker each year.  And, because a majority of companies now have or are planning to adopt BYOD-friendly policies, organizations are likely to have a much wider variety of smartphones as potential sources than computers (which still tend to be organization-selected and issued).

Smartphones are more difficult, more costly, and more time-consuming to collect and process than computers, and the difficulty, cost, and time can vary from model to model, from maker to maker, and from operating system to operating system.  Unlike your enterprise systems, these mobile devices may have automatic janitorial functions that you cannot control or suspend.  Moreover, employees may feel more tempted to delete informal messages from their personal devices than they would to delete organization files from an organization computer (see e.g., Hosch, Stinson, and Brown Jordan).

For all of these reasons it is crucial to consider early in an investigation whether mobile devices belonging to key players may be sources of relevant ESI.  If they are, performing those collections should become an immediate priority, both to allow the extra time that will be needed for them, and to reduce the risk of accidental loss or intentional deletion.

Alternate Communication Channels
Beyond the growing importance of smartphones and other mobile devices, new communication channel alternatives are multiplying and growing in popularity.  For example, messaging services like WhatsApp were insignificant just a few years ago, and now 72% of American adults use them.  Until recently, ephemeral messaging apps that auto-delete messages did not exist, and now, they are used by 56% of smartphone owners ages 18-29.

Usage of alternative communication channels is growing inside companies too.  Uber made headlines in November 2017 when an employee testified about the company’s internal use of ephemeral messaging app Wickr, and Uber is not alone.  In 2014, less than a year after its launch, instant messaging software Slack became the fastest-growing workplace software ever, and its rapid adoption has only continued.  Employees are communicating with each other more rapidly and in more ways and places than ever before.

Because of this reality, your list of sources and source types to consider in your investigations must evolve over time as your organization evolves in its official software offerings and as its employees evolve in their day-to-day behavior.  This is particularly important in investigations in which you suspect intentional employee misconduct, because bad actors may use unsanctioned alternative channels in an attempt to hide their actions.

Key Takeaways from eDiscovery Investigations

 There are five key takeaways from our review of eDiscovery in investigations:

1. Investigations carry all of the eDiscovery challenges typical in litigation, with the potential added challenges of greater time pressure and intentional obfuscation or spoliation

2. Because speed and, at times, secrecy are critical in investigations, moving swiftly to undertake collection is critical and may need to be begun prior to hold distribution

3. Because most individuals instinctively try to render their own misconduct non-obvious, sampling, frequency analysis, and advanced analytic tools should be leveraged to help find relevant language and reveal unknown unknowns in collected documents

4. Despite the incentives to cut procedural corners during an investigation, the need to be prepared for potential litigation later means that preservation, forensic soundness, and process documentation should not be overlooked as you proceed

5. Smartphones and other mobile devices, as well as new messaging applications and other alternative communication channels, are rapidly growing in popularity and importance and should not be overlooked when considering sources for an investigation

For Assistance or More Information

Xact Data Discovery (XDD) is a leading international provider of eDiscovery, data management and managed review services for law firms and corporations.  XDD helps clients optimize their eDiscovery matters by orchestrating pristine communication between people, processes, technology and data.  XDD services include forensics, eDiscovery processing, Relativity hosting and managed review.

XDD offers exceptional customer service with a commitment to responsive, transparent and timely communication to ensure clients remain informed throughout the entire discovery life cycle.  At XDD, communication is everything – because you need to know.  Engage with XDD, we’re ready to listen.