Here's a continuation of my postings about the Electronic Discovery Institute's online e-discovery certification program, that you can subscribe to for just $1. I last blogged about this program on July 10, 2017. Go to https://www.lawinstitute.org/ to sign up for it.
The course I took tonight concerns communications in information technology. The course is taught by Patrick Cunningham, a senior counsel for information governance at Motorola; Catherine Muir, the former counsel responsible for electronic discovery and data security at Sprint Nextel; and Eric Lieber, a counsel responsible for electronic discovery for Toyota's division in the United States.
Cunningham began by discussing data sources. When a legal hold is received it's necessary to distinguish between various types of data - structured data in databases, and unstructured data. Most of time will be spent on unstructured data. He noted a trend toward dealing with unstructured data. It's not necessary to access data on lots of different devices because of the use of the cloud to store data, but there are still a lot of custodians. Motorola rarely collects voicemail or mobile phone data.
Lieber warned loose files make it necessary for the litigation hold to be worded in such a fashion that users are clear on what to preserve.
Cunningham discussed BYOD policies. Most email systems are cloud enabled. Whether or not an employer can require an employee to give them their smartphone device is a difficult legal issue. He speculated that there may be increasing resistance on the part of employees to granting access to their devices. Companies are also reluctant to give their employees $500 devices to do their work on.
Muir noted that information governance policies if followed and enforced can make a big difference in international companies, enabling uniform collection plans to be implemented in different offices. Targeted collections can reduce the cost of discovery.
Cunningham noted that while an information retention policy is a good base, it may also be necessary to review a company's training for employees on how to deal with data files. There is a cloud first, wireless first, mobile first approach at Motorola. Document management systems are being supplanted by cloud environments like Office 365 which allow people to work wherever they are.
LIeber said users are generating a lot of Word and Excel files that are saved on a file share or in a cloud based storage system like Box.com.
Cunningham said that ideally a company would not have to try to prevent local storage. Ubiquitous online storage helps discourage the storage of data on local drives.
Lieber noted that some companies will use departmental file shares - limited shared data inside specific divisions.
Muir noted that decrypting files can be very costly. If an employee has left the company there may be no way to get their password.
Instant messaging is an example of a collaboration application. The more sophisticated IM tools like Google Hangouts can provide voice and video communication. The systems will log phone and video chats, but not record the actual communications. Meetings that used to be a telephone conference calls are now Google Hangouts. The system has revolutionized how people communicate with one another.
Different versions of a document are no longer commonly stored, because users can collaborate simultaneously on a single file.
Requests for text messages are not necessarily going to yield results, because many users make use of other apps to communicate. Even gaming apps allow people to communicate with one another, and archiving of messages is rare.
Lieber noted that different companies have different ways of communicating. Rather than just relying on email, people work together in collaborative tools, like SharePoint.
Muir noted that mobile employees will text frequently. Texts are harder to process and de-duplication is usually not possible.
Many corporations have a social media group to simply monitor communications on sites like Facebook and Twitter. These alternative methods of communications don't make it easy to preserve data. While Craig Ball has explained how to archive Facebook data, other sites don't make the process so easy.
Social media usage is driven by the nature of the case. Voicemails can be converted to textual email messages, but voice recognition technology is not reliable. In the financial industry phone calls are very often recorded.
Cunningham said that at his company, standard desk phones have been removed. Phones service is part of the computer account and is available everywhere. Voicemails are not saved as attachments (in .wav or another format) to attachments. They are instead increasingly stored via links in the could. This makes is less likely for voicemails to be archived by individual users. It has become increasingly easy to get voicemails, and easier to access them from where they are stored.
Cloud data poses on problem for the European Union. European countries don't want data stored on American servers. Locating where Google stores data is very difficult. It segments data in 64MB blocks and distributes it around its data centers, which are in different locations. Forensic images can no longer be generated on what's stored on servers.
Cunningham was asked pursuant to a federal investigation how email traveled between two employees who were both working in the same office. The data actually went from one user's Outlook client in a Illinois office to a data center in Delaware, was processed in an Exchange server, and then sent to another server was finally delivered back to the office in Illinois. This was grounds for interstate wire fraud. Transferring data through the cloud involves a more complex process that makes it hard to prove how email is transferred between users.
Physical ownership of data may be difficult to establish. Different cloud systems may have data hosted in other locations and then not track where the other parties transfer the data to.