A multi-part series on the essentials practitioners need to know about ESI collections
In “Collection and the Duty of Technology Competence,” we discussed lawyers’ duty of technology competence and the importance of understanding collection to fulfilling that duty. In “The Broad Scope of Collection,” we discussed the potential legal and technological scope of collection. In “How Computers Store ESI,” we discussed the operation of computer memory. In “Collecting and Recovering ESI from Computer Memory,” we discussed the technical process of collection. In “The Intersection of Technical and Legal Realities,” we discussed the intersection of that technical process with the legal requirements. In “Self-Collection and Its Risks,” we discussed the first of the three common collection approaches, and in “In-Person and Remote Collections,” we discussed the other two. In this final Part, we review a few other important collection sources you may face.
Thus far, we have spoken primarily about the collection of ESI materials from the computers of individual custodians, but most cases involve collection from a range of other sources as well. The fundamentals of computer memory operation and successful acquisition from that memory are the same regardless, but you still need to be aware of the other source types you may need to consider and the complications that they entail. The other major categories of sources are: enterprise systems, mobile devices, social media sources, and cloud sources.
Enterprise systems refers to the software and hardware systems maintained by your organization or its departments, including email systems, internal instant messaging systems, document management systems, CRM or ERP systems, internal collaboration tools, backup systems, and more. Depending on the nature of the matter, it might also include voicemail systems, security and video systems, or even networked photocopiers or other office machines.
How collection from such systems is performed can vary widely depending on the system. Some systems store their data in ways that can be directly collected like the materials on a custodian’s computer, while others require you to use the system’s built-in search and export tools. Those tools can carry important limitations that affect what results a search returns or what an export contains. Working closely with the responsible IT personnel to ensure those limitations are understood and accounted for is critical when collecting data from enterprise systems.
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. Special tools like those used to collect from a custodian’s computer will be required (e.g., Cellebrite), as will the device itself. Remote collections of mobile devices are not currently an option.
Additionally, it is important not to overlook less common mobile devices that may, at times, be relevant, such as vehicle GPS or data systems, wearable devices like fitness trackers, etc.
For better or worse, social media is currently an influential, indispensable part of American life, and as it permeates its way ever deeper into our professional and personal lives, its impact upon discovery is growing in parallel. There are three main options for the acquisition of social media materials for use in litigation:
The final category of sources you may encounter today is cloud sources. These are cloud-based services used either by the organization or by the individuals within it. Examples include email solutions like Gmail, storage and sharing solutions like Dropbox, messaging solutions like Slack, and office suites like Google Docs and Microsoft Office 365. Much as with enterprise systems, collection from cloud sources is very dependent on the specific source and the features it includes. Some common cloud sources have extensive tools geared towards discovery activities (e.g. Office 365 Advanced Discovery), while others have much more limited search and export options. Successful collection from cloud sources typically requires the assistance of an experienced collection expert (as well as the cooperation of the account holder for individual’s accounts), and it may require custom solutions.
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