In this SearchCompliance Q&A from the ARMA International Conference and Expo in Las Vegas in October, conference speaker Veeral Gosalia discussed the changing state of e-discovery in the face of mobile devices and cloud computing. Gosalia, a senior managing director at FTI Consulting's Technology practice, participated in an ARMA 2013 conference panel that examined how recent data collection-related court rulings force organizations...
to change e-discovery strategies.
How have technologies such as mobility and cloud computing changed organizations' approaches to e-discovery?
Veeral Gosalia: They've exponentially made it more complicated. If you asked me five years ago what data sources you might expect in an organization, you would say someone's computer, an email server, a file server, something to back up data, and some folks may have had thumb drives that they used for personal media. That was, essentially, it. It was all centered [on] their PC.
With these other platforms and devices, people can store their data in multiple formats and operating systems. Each cloud provider has different data structures, so if I have to conduct a data collection exercise or if I have to pull documents from someone, the tools I would use, the methodology I would use, the approach I would take would generally be different custodian by custodian or employee by employee.
How have these trends made e-discovery more complex?
A lot of the tools that people use for data preservation and copying information from those devices don't keep up with the updates that these technologies put out there.
senior managing director, FTI Consulting
Gosalia: The cloud and mobile phones make it very difficult to take a consistent approach and the right level of confidence that you've got all the right documents and preserved them properly. If you look at mobile devices, there is Android, iOS with iPhones, there are people that still use BlackBerrys. Within each of those different platforms, you have different operating systems, different versions, different hardware. When you add up all those things, it gets very complicated.
A lot of the tools that people use for data preservation and copying information from those devices don't keep up with the updates that these technologies put out there. Encryption is getting used more widely because these devices are more likely to be lost. That's a feature that most people want, but that also makes it harder for folks to get access to the data. The other thing is that a lot of these IT departments don't even know when people are storing content and business documents in these devices.
Five years ago, for 90% of what we would expect in the wild, we had the right software and hardware to deal with it. We just don't have that now. We have to be abreast of so much more technology during data collection.
What is the most common mistake that companies make with an e-discovery strategy, and what are a few tactics to address these mistakes?
Gosalia: They don't plan ahead. They wait for a reactive situation to drive their processes and approach. The luxury of time helps you make smarter, more efficient decisions. It's really important for companies to develop a data map immediately, so at least they know where relevant data exists in the organization. If they have situations where people are using mobile devices or other platforms to store information, they can institute a policy for proper use.
For example, if someone is using an iPhone for work email, a company might opt to say, 'We now have the right to remotely wipe the phone if you decide to leave the firm,' or, 'We have the right to ensure you are enabling the encryption on your phone,' or whatever the case may be. Having that bit of time to prepare and build a data map can go a long way when you are facing a subpoena.
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Are technologies only part of the answer to the problem of cohesive e-discovery? How do business processes or other factors play into the equation?
Gosalia: It's the age-old 'people, process and technology.' Technology is only one-third of that equation. To really do this well, you have to have all the right parties involved. That could be in-house, outside counsel, records management, any of the company's own e-discovery professionals -- all of these folks have to talk to each other and align themselves.
There is not one specific department or group that can take the lead on this -- they each have to be aligned in what they are doing. In-house legal needs to know what IT is doing when they are adopting these new technologies and the impact it has on litigation hold and things like that. The e-discovery folks need to know when IT is rolling out a new device or platform. Ensuring there is good communication internally and a coordinated effort is essential for a proper e-discovery strategy.