Are you aware of the growing importance of mobile/smart devices in the e-disclosure process?
In early June 2018, the outgoing Director of Public Prosecutions, Alison Saunders, apologised after 47 rape or sexual offence cases were halted because evidence had not been properly disclosed by the prosecution or police.
Figures also revealed that 916 people had charges dropped in 2017 due to disclosure failings – up from 537 in 2014-15 and 732 the following year.
One of the reasons given for the disastrous situation in the criminal law system, which could have resulted in many innocent people being convicted of crimes, is the Crown Prosecution Service’s (CPS) struggle to keep up with the amount of evidence now available on smart devices.
And we are not just talking about smartphones here. Smartwatches, fitness bands, the Internet of Things, e-readers, iPads – all these devices can contain vital e-disclosure information, outside of the traditional laptop or desktop computer. Adding to the problem of endless data contained on multiple devices is the fact IT departments, while grappling with the security issues associated with smart devices, may not have the risks associated with potential litigation or compliance investigations in mind.
The extent of smart device usage in the UK
According to the most recent data, 85% of UK adults now own a smartphone. This means almost all employees have the equivalent of a 1990s supercomputer in their pocket. Data contained on a smartphone includes messages from a variety of apps, calendars, photos, web browsing history, GPS, and voicemails. All this information can be crucial in a litigation or company investigation disclosure project.
The way we use smart devices
Anyone who remembers writing an email or letter 15 years ago will know the idea of adding a smiley face or a kiss at the end of it would have been laughable. But smart devices encourage informality; employees, managers and company directors often say things via WhatsApp or Slack that they would never consider saying in an email. Furthermore, messaging is sometimes used as an alternative to email for the very purpose of saying something that could be incriminating, with people mistakenly believing that, unlike email, smartphone messages cannot be retrieved and used as evidence. This is untrue, as there is now a variety of e-disclosure tools that can pull seemingly-deleted data from mobile phones.
E-disclosure from mobile devices
Everything in electronic disclosure at present comes from the legacy of a world of documents; memos, minutes, letters, e-mails etc. Mobile e-disclosure has no relation to documents, instead, it is all about data. And furthermore, the data collected by smartphones is not necessarily inputted by the owner, instead, it comes from apps and search engines tracking what we look at, like, and where we travel to.
E-disclosure relating to mobile devices also requires us to change the disclosure process. As one US attorney put it:
“Mobiles different, it does not answer our questions in quite the same way. It requires new eyes to be able to discern what it is we get out of mobile….we have to adapt the questions to the data rather than the traditional approach – a linear review of communications such as email”.
In the United States, the courts have made moves to issue ruling and even sanctions against companies to ensure they collate and protect mobile data. For example, in Re Pradaxa (Dabigatron Exterilate) Prods. Liab. Litig., MDL No. 22385, 2013 WL 6486921 (S.D. Ill. Dec. 9, 2013), text messages were requested from the claimants during the e-disclosure process. However, the defendants did not prevent the deletion of messages once the litigation hold was in place. The court fined the company almost $1 million for not preventing the deletion of messages on company smartphones.
More recently, in Ronnie Van Zant, Inc. v. Pyle, 17 Civ. 3360 (RWS), 2017 WL 3271777 (S.D.N.Y. Aug. 23, 2017), which involved a dispute over a movie being made about rock band Lynyrd Skynyrd, a court held that a company director, who had a contract with the defendant and an interest in the litigation should have known better than to delete text messages on his mobile phone during the pending lawsuit.
Although the above cases come from America, there is little doubt the issue of mobile data and e-disclosure will be in front of the English courts very soon.
Nowadays, most people are never more than arm’s length from their smartphone. It is the gadget that knows more about us than any other: what we think, what we do, who we are with, where we have been. Therefore, it is crucial that corporations start treating mobile devices the same as they do their email servers and hard drives; educating employees that the data contained on them can and will be used in litigation or company investigations.
Many will remember the early days of email, where companies argued that email was not corporate communication and therefore there was no obligation to retain a record of them should litigation matter or a compliance investigation arise. Nowadays, email is central to the e-disclosure process, and it is hard to remember a time when it was not. The same path is being woven with regard to smart devices, which can provide evidence of a person’s actions, thoughts, and the places they have been, with more accuracy than ever before.
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