The appointment of Stuart Clarke to head a new forensics function at Millnet gives me an opportunity to set out here something which I cover in some of my eDisclosure / eDiscovery talks. The general theme there is that, important though it is to collect, in a proper and defensible manner, the multiple gigabytes of e-mail, Microsoft Office files and the other conventional sources of electronic evidence, those who stop there and consider the job done might well be overlooking apparently trivial sources on which cases can turn.
Stuart Clarke has been at Millnet since earlier this year. We met at CEIC in Las Vegas in May, a conference which, thanks to its Guidance Software heritage, brings together the brightest and best in data collection skills. One of my own panels there, delivered in conjunction with Craig Ball, was about social media; my focus was on the potential traps which lie in the data stored by apparently trivial applications which are used every day but which might easily be overlooked when one comes to collect all relevant data.
My context was not so much the formal obligations and the sanctions which may follow from failing to comply with them, but the fact that the evidence which they produce and hold might prove or disprove something critical to the dispute. Some of my own examples were about an application called Evernote, to which I revert below. I discovered from talking to Stuart that he was similarly interested in the implications raised by this particular tool.
Stuart’s appointment at Millnet was intended to extend the company’s reach. Their reputation lies principally in processing, analysis and review, and in the consultancy advice which wraps around these components of any eDiscovery exercise. They recruited Stuart to to take more control of the manner of collection and the quality of the incoming material. They wanted, Stuart said, to be more “innovative”, and I asked him what that meant in this context.
Part of the answer lies in new forms of data. The cloud, mobile working and social media have not hitherto been primary sources of disclosable data in commercial cases, but those coming through now will almost certainly include one or more of these elements and their omission might well be just that – an omission. Smartphones do much more than enable conversation, texts and e-mails and, like iPads and other tablets, hold both documents and other evidence which should not be overlooked. Some of this information is user-generated and the user knows that it is there – only an idiot, one assumes, would be ignorant of the fact that the transmission of an e-mail or the making of a call can be traced back to its source. Other information, however, is created and stored without the user’s knowledge. If the user does not think of it, then the lawyer collecting evidence will probably not think of it either. It is, Stuart said, overlooked or, perhaps, put in the “too hard” box. “The data which they pepper around can be a goldmine” he said, adding that his job was to exploit that goldmine.
One of the examples which I gave at CEIC was faithfully reported by Sean Martin on Legal Technology News in an article of 17 August called Technology Change Agents Make Discovery Better or Worse. I showed in example of an Evernote entry which was not only dated and timed, but which linked in Google Maps to the precise spot north of Salinas in California at which I created the entry. The metadata from one of my photographs of Salinas taken shortly before then reinforced the already fairly inescapable conclusion that that is where I was.
A further example was a note of a panel session for which Evernote correctly deduced from my calendar what I was doing at the time, supplemented that with GPS location information, and created a title for my note which read, correctly, “Note from FTI panel in Kensington”.
Yet a third example comes from the Ordnance Survey maps on my iPAD which show precisely by a red line overlay the route taken whilst the map was open.
This is an app which I carry around with me and use all the time. When combined with information stored by other devices, and perhaps supplemented by e-mails, it would make it hard to refute the suggestion that I was in a given place at a given time – and correspondingly, perhaps, that I was not somewhere else.
Lawyers do not need to understand the technology behind all this, but they do need to be aware that their clients or their clients’ opponents may have similar information which is no less disclosable than their e-mails, and just as likely to be useful as evidence. Armed with that information, they can then instruct a suitably qualified expert, like Stuart Clarke of Millnet, to collect the data for them.