I recently interviewed David Greetham, Information Governance and eDiscovery business unit leader at Ricoh USA, Inc. We covered so much with regard to eDiscovery trends that we couldn’t fit it all in a single blog post. Part One of my interview was published Monday, here is part two with David Greetham.
In part two with David Greetham, we discussed discovery from mobile devices/collaboration apps and the Big Data challenge.
Doug Austin: It still seems that we see a lot of attorneys who don’t regularly include ESI from mobile devices or collaboration apps in their discovery processes. What do you think the challenges are that are keeping them from doing so and how can they be addressed?
David Greetham: Attorneys often prefer to agree between the parties to exclude mobile devices all together, not just based on cost, but also based on practicality. For example, if you have five custodians who are geographically dispersed and they all have a mobile phone or tablet, the most common way of collecting is for them to to ship the devices somewhere or for somebody suitably qualified to come to them to conduct the collection. With the change in interfaces, security and operating systems (particularly with cellphones), there are ongoing technical challenges too.
Have you ever met a custodian that is happy to be without their device for a few days (if they ship), or a few hours if they have a suitably qualified person come to them? – The latter option tends to be very expensive. In addition, we do so much on our mobile devices these days, that custodians are often concerned about the protection of personal files and apps on the devices that they may use for non-work related matters.
Another reason attorneys often negotiate devices out is that it also becomes a proportionality consideration. The cost, time, and practical challenges of collecting a mobile device as a standard sometimes doesn’t necessarily align with proportionality goals.
In addition, I think as we dig into the information that is available on mobile devices, it’s largely available elsewhere and often easier to collect and process via those other devices or locations. Obvious exceptions to this are if you have intelligence about what’s uniquely on that mobile device and its relevancy or potentially relevancy to the case at hand. Another exception is with SMS. We do see SMS and photos with geotags occasionally in litigation that are unique to mobile devices. In all cases, the case value compared to the practical requirements and expense to collect data from a mobile device and process it, need to be considered. My vision for future technologies is that there will be a suitable solution for these device types, where you can plug your device in (regardless of where it is) and new cloud technology will gather the information that is only uniquely available on the device.
Collaboration tools are different in terms of the accessibility of the data there, and we’ve seen a huge increase during the pandemic regarding use of collaboration tools. The world appears to have an urge to come away from email for communicating and there are more tools available than ever to help you do that. There will be even more advanced tools in the future to deal with apps like Teams and Slack. We’ll likely see several advancements in technology in the area, and because of increased adoption, it’ll be much more difficult to exclude them from an ESI protocol in the way we often see today.
Doug Austin: Data in the world is doubling about every 1.2 years and there are more sources of data to address than ever. How has that impacted eDiscovery workflows and what would you recommend to our audience to address the Big Data challenge?
David Greetham: There’s simply too much data to review in litigation using traditional methods, and it has been that way for a while –and going to get worse. Artificial intelligence has helped with that. Ultimately, I think we’re going to see more granular focus within ESI analysis as part of litigation, aided by the use of analytics. I imagine attorneys will need to become more investigative, rather than just collecting a lot of potentially relevant ESI from servers and storage devices and putting it through a filtering and reviewing process. Attorneys will need to ask custodians more and deeper questions to dig more thoroughly into the facts. This will lead to a more granular discussions about sources of potentially relevant ESI. Following this path, I think this could ultimately result in an increase in attorney’s fees early in the case which will be entirely offset (at the very least) by a decrease in downstream processing and review fees.
Hope you enjoyed part two with David Greetham! We’re not done yet! The third and final part of my interview with David Greetham will be published on Friday.
So, what do you think? Please share any comments you might have or if you’d like to know more about a particular topic.
Disclosure: Ricoh USA is an Educational Partner and sponsor of eDiscovery Today
Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.
I have moved to a separate home-office cell phone. While it would be impractical to be without it for three days, I would be a little concerned about the collection of personal and unrelated data. Also, I wonder if there is a meet-in-the-middle option, akin to what Xfinity does when one has to return their modem or cable device: “Go to one of these locations, and they will extract the data from your phone. Please allow 2-3 hours from start to finish.” Minor inconvenience, in my opinion.