by Michael D. Sarlo - HAYSTACKID on November 02, 2017
Smartphones and other mobile devices have become ubiquitous and central in the business landscape in the 10 short years since the first iPhone was released. Now, these gadgets are among the greatest drivers of productivity, communication, and collaboration within organizations.
There is no denying that the overall impact has been positive, but there are countless issues attorneys, regulatory agencies, and security professionals run into when mobile phones become pertinent to a litigation proceeding.
In the past few years, many corporations have started to get a better handle on their mobile device management policies, and that is certainly a sign of progress. However, review and production of data extracted from mobile devices remains an entirely different story, as device diversity, increases in app functionality, and other elements of technological advancement and user behaviors all become more complex and weighty.
Here’s where the profession stands with respect to mobile review today, the challenges and solutions we have overcome along the way, and where we might be heading.
Early Dangers and Transformations
When mobile phones started becoming more relevant to cases, there was simply no efficient way to handle review. The instant ubiquity of these devices stimulated an urgent need for repeatable methodologies, software, and hardware which allowed for their forensic preservation, processing, and analysis for fact retrieval.
Even once those early capabilities emerged, reviewing and producing mobile data just wasn’t in line with the typical workflows that come along with document review and production. Often, that meant a separate stream of work for e-discovery teams.
Getting all of the pertinent data integrated back into a single home emerged as a pressing demand a few years back. Many attorneys and paralegals recognized all too well that mobile devices were not only more commonly included as data sources during a litigation proceeding—there were also more of them in each case. Totally separate reviews were quickly becoming unpractical.
As technologists and service providers consulted practitioners on more complex cases that involved mobile device-related quandaries, more options started to hit the scene.
For instance, as business professionals started texting instead of just emailing, the volume of SMS data went up exponentially in the business world. As a result, review of relevant mobile communications entered the nightmare territory: running search terms would only return a single relevant message, when in fact many text messages in a discussion might revolve around that search term without explicitly using it. As our team developed Cellebrite Integrator (a 2017 Relativity Innovation Awards submission), we added search hit proximity threading—which ties those related messages together—to allow users to get the complete picture around their search term hits when reviewing messages.
Fortuitously, this feature also gave case teams a tactical advantage—ultimately allowing them to open a line of discourse with a regulator or opposing party to set a hard standard of proximity around text messages for production. Previously, most productions were based on all communications in time between two parties—there was no way to establish a threshold around actual responsive content. Often, that meant a wider net—and larger data volumes—than necessary.
This is just one example of the innovations that have changed the game for review teams since mobile data first hit the scene. Over time, further complications such as the introduction (and immediate explosion) of non-standard data types like voicemail and third-party messaging apps added speed bumps for review teams. This has meant that innovations in automation, user interfaces, workflows, and data visualization have required plenty of attention in the last several years.
As the demands of mobile review continue to diversify, professionals across the legal industry have had to start anticipating trends and needs more quickly.
Technical innovation is still critical but, as the gap has closed between technical capabilities and data demands, it’s beginning to mean less in the context of attorney and paralegal workloads. Instead, a much different demand is rising: consultation and training.
The lines between the vendor and the law firm or in-house legal department continue to blur, and mobile review is a great example of the direction in which these relationships are heading. Attorneys and paralegals need—in addition to great, intuitive tech—support and training to ensure that they can efficiently use the tools they purchase and adopt.
Think of it this way: an attorney gets a review project that involves 50 mobile phones. No matter what, it’s going to take a lot of time; he will spend many hours of sitting in front of that glowing computer screen, with no room for error as stakeholders from all sides are breathing down his neck. Technical confusion about the process itself is a headache he can’t afford.
What Does This Say about the Future?
Mobile device data review and production is a great example of the ways in which attorney and paralegal needs are dictating transformations within the vendor, litigation support, and legal tech innovation landscapes. From where we’re sitting, the technology absolutely must be cutting edge, demand-driven, forward-looking, and intuitive. However, consultation is increasingly important—and that includes training, support, and enablement.
Attorneys and paralegals are going to continue to need more advanced, efficient, and powerful technologies coupled with litigation support that offers a consultative edge rather than out-of-the-box software. Cars, wearables, and pretty much everything else are generating data, and that information will need to be importable, reviewable, and capable of being incorporated into an industry standard workflow.
That will take heavy lifting, but the more we can teach attorneys and paralegals about how to use the technology, the better their outcomes will be.
Michael Sarlo, EnCE, CCLO, RCA, CBE, CCPA, is the Vice President of e-Discovery & Digital Forensics at Haystack Information Discovery (“HAYSTACKID”), a Relativity Authorized Partner and provider of end-to-end technology-driven, forensics, litigation preparedness, and e-discovery services. Michael facilitates all HAYSTACKID's operations related to e-discovery in the United States and abroad, while working on highly complex forensic and e-discovery projects. He has full oversight of all facilities, and manages workflow and change management to ensure consistent, quality, and efficiency of all processes for each project entering HAYSTACKID’s walls.