The days of limiting an ESI collection to computers, email and server data are long behind us in the world of computer forensics and e-discovery.  Chances are very good that you have a cell phone, a tablet or both within six feet of you right now.  Most of us use these mobile devices for the very same things we use computers and email for; communicating with others.  Additionally, we use our mobile devices to take photographs, leave social media messages for others, browse the web and help us navigate from point A to point B.  Cell phones and mobile devices are cemented in our lifestyle.

Boy, these things sure do sound like they could be useful in litigation, don’t they?  People are just as likely now to send a discoverable text message as they are an email.  I was never in “Place A” is easily refuted by the GPS data embedded in a photo on a user’s phone.  Violations of restrictive covenants may be occurring on a cell phone using Facebook messenger, text messaging or any of the various apps like WhatsApp, Snapchat, etc.

Why should we go through the hassle of collecting even more data?  The usual reasons include (1) it’s too expensive (it’s really not!), (2) there probably isn’t anything there worth looking at (how do you know until you look?), and (3) people have too much private data on their cell phones to collect them (it’s never stopped discovery before, we just work around it).

The truth is there is a greater likelihood that nefarious communications are taking place OUTSIDE of the structured email system than inside it.  Most people these days have an appreciation for the fact that an employer probably can read all the employee’s work emails.  As a result, when people try to have surreptitious conversations, they turn to their cell phones to do so.  Maybe it’s simply a call, or a SMS text, or a photo of a confidential document attached to a WhatsApp message.  These are all relevant to you litigation, but you only get to use them as tools if you collect the ESI.

When you are formulating your ESI collection strategy, always remember the entire universe of data locations including user’s cell phones and mobile devices, and be weary of sticking to an outdated “computers and email only” plan.  You are probably missing some very interesting data!



Forensics and E-Discovery