Mobile Phones and International eDiscovery: Let’s Get mESI

Mobile Phones and International eDiscovery: Let’s Get mESI

Author: Eric Everson, MBA, MSIT-SE (Juris Doctorate Candidate, May 2013)

As a software engineer turned law student, I spent countless hours in my former life embedded in the Software Development Lifecycle (SDLC) creating mobile software.  My specialization as a mobile software developer was in mobile security software, hence my company MyMobiSafe.com.  Interestingly as C-level executives increasingly conduct their global business via mobile devices (cell phones, tablets, etc), this is opening new doors of consideration with regard to International Electronic Discovery. 

Part of what makes international business law so interesting is the classic notion that “the deal” follows the law of the nation where the agreement was reached.  Of course this also highlights the importance of forum selection clauses in any international business contract, but we will save that for another day.  Much more interesting today are the global transactions being handled via mobile devices and the implications this may have on International Electronic Discovery.  Let’s focus on two key areas for now: Preservation and Extraction. 

Preservation: Under Zubulake, every American company (or multinational company with an American conglomerate) has a legal duty to preserve electronically stored information (ESI).  This gets more complex as the bulk of preservation today is solely focused on the preservation of computer-generated ESI rather than the ESI produced by mobile devices.  High profile international legal issues such as the recent Barclays fiasco demonstrate that ESI is generated all over the world and often from the palm of a C-level executive’s iPhone.  Now is a great time for businesses to begin shifting their preservation efforts to mobile forms of ESI.  One tool to better capture and preserve this data is via the cloud and via the various cloud-based backup technologies (i.e. iCloud for your iPhone).       

Extraction: Once the data is preserved the next question becomes how we extract it in such a way that it doesn’t compromise its native format.  There are a growing number of tools available for extraction of mobile ESI (mESI).  It is important to seek a software that complements your current operating environment without costing you too much.  As noted there are a growing number of tools available, but one that stands out today is the Nuix Investigator suite.  This solution particularly allows you to search and analyze data across multiple devices with unmatched speed. 

By virtue of the internet, any business can become an international business overnight.  The nature of business today is global and businesses as well as attorney’s must stay connected with the technologies that move business forward.  From a technology perspective we are shifting from a computer-based environment to one that integrates multiple devices from handsets to tablets.  mESI is a new frontier in eDiscovery, yet it is one that plays a vital role in nearly every business transaction today.  Whether you are a small business or working on behalf of an MNE, take the strides today to reassess the current eDiscovery strategy to incorporate the preservation of mESI.

#eDiscovery

@IntleDiscovery

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About the Author:  Eric Everson is a 3L law student at Florida A&M University – College of Law.  Prior to law school he earned an MBA and Masters in Software Engineering while he tenured ten years of executive leadership in the U.S. telecommunications industry.  The views and opinions presented in this blog are his own and are not to be construed as legal advice.  Eric Everson currently serves on the Board of Governors for The Florida Bar Young Lawyers Division Law Student Division and is the President of the Electronic Discovery Law Student Association at Florida A&M University – College of Law.  Follow @IntleDiscovery