US forensics expert and trial lawyer Craig Ball has two attributes which are valuable – he knows what he is talking about, and he writes about it clearly and persuasively. In addition, much of what he says applies in jurisdictions beyond his own.
His recent article Mobile to the Mainstream looks at the availability of data of various kinds on mobile devices, at the apparent reluctance of lawyers to even consider it, and at encouraging a consensus about what mobile content should be routinely collected and reviewed in eDiscovery.
He gives some statistics about the usage of mobile devices, including the fact that two-thirds of emails are sent and received using phones. This, when added to all the other data captured (consciously or unconsciously so far as the user is concerned) all day and every day, makes smartphones “everyday tools that must be made part of everyday mainstream eDiscovery”.
There is a compromise to made somewhere between the extensive volumes and types of data which could be captured from a smartphone and what is actually helpful or necessary as evidence or for compliance with the rules. Craig Ball puts it like this:
Forensic examiners endeavor to “get it all” because that’s what we’re trained to do, and what forensic tools are designed to do. Yet, “getting it all”—irrespective or relevance or materiality—is NOT what litigants or lawyers are obliged to do in e-discovery.
His focus, then, is on “what readily available, relevant and non-privileged considering the needs of the case”. Whatever the differences between the rules and the language, this applies as much in England and Wales as in the US.
The bulk of Craig Ball’s article is a recital of the different types of data which may be found on a phone, together with an explanation of the ease or difficulty involved in collecting and reviewing it – proportionality is effectively the balance between the difficulty and expense of extracting information and its likely value. I will not go through each of them, but would draw your attention specifically to what Craig Ball says about messaging where, he says, “double-digit growth in messaging volume mirrors double-digit declines in email usage”. How many lawyers do not even think about messaging, perhaps even while using it extensively themselves?
Among the other things to which Craig Ball refers, phone call history and geolocation data are the data types which have far greater potential value than people think. The metadata behind photographs can also matter – see the Kairos case from England and Wales where picture metadata delivered on the eighth day of trial helped convert an accident claim into a scuttling judgment; the late delivery of this and other material also undermined the evidence of an important witness.
Craig Ball ends his article with a mobile evidence relevance scorecard which ranks mobile data types according to ease of collection, ease of review, potential relevance and by whether or not it is routinely collected.
Consistent with Craig’s general message, the word “routinely” implies that different principles may apply to different cases. In considering proportionality in any particular case, it is helpful to have a generally-accepted yardstick as one of the factors to put into the balance. Craig Ball solicits views on his criteria and conclusions, so tell him what you think.
You might like to cut out and keep his table. If nothing else, it will serve as a check-list to remind you of that vital first step – to think about the subject at all.