October 2015 Bar Bulletin
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What's in your pocket? Smartphones: A new "Safe Harbor" for e-discovery

By Larry G. Johnson

 

Think for a minute: What computer do you use that has the most information about you on it? Your desktop at work? Your home PC? Your laptop? The firm's server with all your emails?

The right answer probably is: "None of the above." Or to be precise: The answer is in your pocket or purse. It's your smartphone. And the reason may not be immediately obvious. Not only does your smartphone sync up with all your emails (regardless of where you wrote or received them), but it also produces and retains two very important data types found on smartphones: voice mail and text messages. And with proper forensic tools, your phone also retains deleted files of these data types that can be resurrected.

In other words, in your pocket are the most meaningful communications and information you exchange with others in your life. It's where you live.

That's why wise lawyers consider their client's smartphone first when preparing for e-discovery. This is especially true in family law cases where there are often valuable conversations between the parties via text messages and voicemails.

Let's pause a moment. Think how powerful voicemail alone can be to a litigator. Unlike emails or text messages, you can hear the actual voice, mood and intonation of the sender. The tone could be more important than the content.

Voicemail is electronically stored information ("ESI") that lawyers too often forget to ask for, or even know how to ask for. Yet for many phone users, that is where all their voicemail is. If you did not ask for and receive voicemail in your last case, you didn't do a complete job.

According to the Pew Research Center, "nearly two-thirds of Americans own a smartphone, and 19% of Americans rely to some degree on a smartphone for accessing online services and information and for staying connected to the world around them - either because they lack broadband at home, or because they have few options for online access other than their cell phone."1 Given the convenience and portability of smartphones, the trend toward greater reliance on this kind of computer for all our personal and business data can only continue upward.

Accelerating this trend, even corporate America is relying more on their own employees' communication devices and data. Many companies, such as Microsoft, are following a "BYOD"" strategy: "Bring Your Own Device."" Employees agree to be bound by company email and Internet usage policies, but otherwise they use their own smartphones for both business and pleasure.2

So, with just one small device lawyers can easily access a ready repository of all the kinds of data used daily by people on a computer (and phone) that goes with them everywhere. On top of the three main communication data types previously mentioned - text message content, voicemails and emails (plus attached documents) - there are added bonuses on smartphones. These include:

  • the photos and videos people take that are stamped with times and dates;
  • GPS data from trips taken;
  • calendars with appointments and dates preserved;
  • Internet sites visited and search terms used;
  • Wi-Fi location information; and
  • shopping and social network information.

It is from such a cornucopia of information that Seattle/Portland lawyer and technologist Tom Howe has come up with a unique combination of technology and methodology for extracting all the data on smartphones. His simple, innovative process promises to usher in a true e-discovery safe harbor worthy of codification in court rules, model orders or agreed protocols among litigants.


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