Data Collection

The emergence of ephemeral messaging applications to communicate with friends, family, and coworkers quickly, securely, and effortlessly has boomed over the past decade. In that time, users of ephemeral messaging apps have risen significantly, from millions to billions of active users! Ephemeral messaging is an integral and evolving part of both individual and company communications with advantages and challenges impacting companies and the legal industry. Companies must consider the ramifications of their employees' use of ephemeral messaging and adopt policies and procedures to best protect themselves and comply with requirements relating to litigation and regulation. Courts have already begun addressing the failure to preserve relevant ephemeral messages and have been issuing sanctions in a myriad of legal challenges. Ephemeral messaging is here to stay, and companies, courts, and attorneys must understand and adapt to evolve with this emerging technology.

While requests for email communications and collections from hard drives and networks are standard in today’s litigation, a party’s text messages, and collections from mobile devices are oftentimes overlooked. A narrowly tailored motion to compel forensic exam can be a valuable discovery tool to analyze the data on a party’s mobile phone. This blog analyzes the factors that led a court in the Northern District of Illinois to order the forensic imaging and collection of a party's mobile phone.

Document management systems allow users to send a link to a document directly from the system, ensuring that all recipients receive the same, most up to date version, and, often most importantly when it comes to efficiency, ensuring that only one person is working in a draft document at a time. When we email links to these documents, the document itself is not attached to the email; rather, a hyperlink to the document where it is housed on the document management system is attached. As an e-discovery professional, my next thought is….how do we handle these links in discovery? At least one court has grappled with this question and its decision sheds new light on how we can handle hyperlinked attachments in our own cases.

Two recent decisions highlight the usefulness of phased e-discovery as a tool to satisfy Rule 26(b)(1)’s ever-important proportionality requirement. Model orders for patent cases in numerous courts require phased discovery, typically phasing email discovery to occur after other discovery and only if deemed necessary. However, phased discovery is becoming prevalent in other types of cases as well.

As our work force has shifted to mobile and remote working practices (a trend in place before COVID, which only accelerated during the pandemic), businesses have turned to collaborative messaging tools such as Slack and various versions of Teams to manage communications. On the positive side, by using these messaging tools, organizations are able to more efficiently discuss ideas and brainstorm solutions. However, when an organization becomes involved in a dispute and those communications are potentially relevant to the dispute and need to be preserved and collected, the process may not be as straightforward as a simple email collection.

In DR Distributors LLC v. 21 Century Smoking, Inc, v. CB Distributors, Inc. and Carlos Bengos, 2021 WL 185082, No. 12 CV 50324 (1/19/2021), Judge Johnston of the Northern District of Illinois, granted Plaintiff’s motion for sanctions against Defendants and their former counsel, requiring them to, among other things, pay what was expected to exceed a million dollars of attorneys’ fees and costs to Plaintiff. The Court imposed the sanctions based on its conclusion that Defendants and their former counsel: did not take reasonable steps to preserve ESI (electronically stored information); did not conduct a reasonable investigation of their ESI; did not timely disclose ESI under 26(g); and spoliated thousands of emails and chat messages. This ruling shows that we, as legal practitioners, need to be extremely congizant of our discovery obligations.