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#WaybackWednesday: Mobile Device Investigations Webinar

A smartphone from a key employee lands on your desk, what next? From employment matters and IP theft cases to Foreign Corrupt Practices Act violations and corporate fraud, mobile devices are the modern reservoir for key data in litigation and investigations. However, this new data source is still uncharted territory for many legal and technology professionals working in law departments and law firms.

Last month, Kroll Ontrack’s own Jason Bergerson presented a useful webinar, Mobile Device Investigations: From Android to iPhone and Back, that provided an introduction to the world of mobile device investigations.

The Complex World of Mobile Data

The webinar began with an introduction to the world of mobile data and it was highlighted that there are many different types of data on mobile phones, each one needing a certain process to identify and extract data properly. While smart phones have been equated to computers, it is important to remember that they are not computers and to treat them the same can be a sanctions-worthy mistake.

The webinar walked through the computer forensic investigative process and provided helpful tips to keep in mind regarding the content in various apps and which data might be the most useful in litigation. The webinar highlighted the complexity of the varieties of data and things to consider when pursuing a forensics investigation.

Not All Phones Are the Same

This webinar also discussed at length the fact that cell phones themselves are a diverse category. Modern smart phones, burner phones, older flip phones and international models each have their own systems and methods of storing data. Furthermore, it needs to be considered where the data is physically located. Is it in the cloud? Or in the device in-hand? Each of these impacts the forensic method and the likelihood of success. The webinar provided various considerations for practitioners, depending on the sort of device at issue in their case.

It Was Deleted; Is It Gone?

In this webinar, various scenarios were explained in which mobile device data might be seemingly lost, but could still be recovered. Also, it was shown how some deleted data can be recovered, but there is a very short time frame in which to do so. The webinar provided guidance for practitioners on how to proceed, so that investigative team can have the best odds of successfully obtaining the needed data.

We at Kroll Ontrack know that time demands and schedules make it difficult to attend webinars. Therefore, we have all our webinars online to view on demand, so that you won’t miss out on information that matters.

Lingering Ediscovery Worries? Check With a Pro

Unexpected investigations, compliance violations and discovery sanctions are just a few of the difficulties that corporate counsel must contend with if the realities of ediscovery are ignored. If you have ever found yourself wondering how your organization would fare faced with a duty to produce electronic documents in a legal matter, Kroll Ontrack has a solution: an “Ediscovery Pre-Check” with an ediscovery or information governance pro(fessional).

Consultant Profiles for Every Ediscovery Scenario

Through its years of assisting organizations faced with data management through document production, Kroll Ontrack has assembled a top-tier team of experienced consultants. Our experts have run the gamut on everything from legal holds to proactive ediscovery planning; from information governance to antitrust second requests.

Check out each of their biographies to match your needs to an ediscovery professional’s background. These profiles not only explain how our experts can help you, but also include an inside glimpse to their previous work, trends they are watching and what motivates them to be the best in their field.

When you find a consultant that fits your needs, send them a note – they would be happy to speak with you!  In fact, over the next couple of months, Kroll Ontrack is offering a free “Ediscovery Pre-Check” – an advisory appointment with any of these consultants.  They will conduct a brief evaluation of your greatest ediscovery and infogov hotspots and provide you with a short synopsis of your organization’s greatest risks and opportunities.  Take advantage of this opportunity to answer your lingering questions.

Your Ediscovery Pro

  • Do you need help navigating a matter with multiple parties and millions of documents? Check in with Cathleen P. Peterson, the Complex Matters Pro.
  • Do you need help with retrieving deleted or encrypted data? Check in with Jason Bergerson, the Computer Forensics Pro.
  • Do you need help using predictive coding to respond to a document request? Check in with Karen Wagshul, the Analytics and Predictive Coding Pro.
  • Do you need help with a DOJ or FTC request? Check in with John Pilznienski, the Second Requests Pro.
  • Do you need help with preservation or implementing a legal hold? Check in with Jackie Warner, the Legal Hold Pro.
  • Do you need help identifying custodians and collecting the data? Check in with Nick Pietig, the Collections Pro.
  • Do you need help with data management and discovery readiness? Check in with Tom Barce, the Information Governance Pro.
  • Do you need help with knowing which data your organization can delete, and which should be saved? Check in with Vikas Pall, the Ediscovery Assessments Pro.

Smart organizations know their ediscovery hotspots and regularly fine tune their protocols. When was your organization’s last check-in?

Q&A WITH ADAM STRAYER OF KROLL ONTRACK’S SECOND REQUEST TEAM

A specialized field such as ediscovery in antitrust matters requires an equally specialized and expertly trained team. Here at Kroll Ontrack, we are fortunate enough to have some of the most seasoned and knowledgeable consultants, including professionals with direct work experience with antitrust agencies and private merger and acquisition practices. When you can’t second guess a second request, you need to know one of Kroll Ontrack’s very own antitrust experts, Adam Strayer.

QTell us about your background and what led you to becoming an ediscovery expert that focuses on antitrust matters.

A: Before working as an ediscovery consultant, I was an attorney at the Federal Trade Commission (FTC), where I reviewed proposed mergers and investigated anticompetitive conduct. While there, I drafted and negotiated a number of second requests and gained valuable insight into federal agency document requests.  That was a great foundation for what I am doing today—helping Kroll Ontrack’s clients develop strategies for responding to similar requests. I’ve also worked on the private practice side, defending companies in antitrust investigations and helping them respond to second requests and similarly large data requests in commercial litigation. After these roles, I moved into the ediscovery service provider world, where I worked on the managed review side—designing workflows, driving strategy timelines and responses, and meeting production deadline goals.

QWhat types of services do ediscovery consultants provide to law firms and corporations involved in a second request?

A: Kroll Ontrack leverages a proven, defensible process for handling second requests from inception through completion. This process involves dedicated team resources with specialized expertise to handle the sheer complexity and tight timeframes associated with second requests. The team provides 24/7 support for your case, including onsite project scoping, planning and kickoff and daily status calls and briefings. In addition, an ediscovery consultant is skilled at honing the technology platform specifically for the needs of a second request review – from setting up the workflow and category tree to leveraging predictive coding. Our goal is to provide efficient, accurate and defensible ediscovery for deadline-driven second requests.

QCan you give us an example of a recent second request that Kroll Ontrack helped with?

A: Kroll Ontrack works on dozens of antitrust matters each year. For example, in 2014 alone, Kroll Ontrack produced over 20 million pages of documents involved in second request matters. Furthermore, many of these antitrust matters involve global competition bureaus or merging companies outside of the United States. In one recent case, two device companies looking to merge were issued a second request by the FTC. Kroll Ontrack’s ediscovery.com platform, predictive coding technology and document reviewers aided the merging companies in completing the FTC production in less than two months, taking 2.5 terabytes of data down to about 500,000 documents.

QSince we’re getting to know your work, it would be great to get to know a little about you. What is your ideal day outside of the office?

A: I live in Brooklyn Heights, just across the Brooklyn Bridge from Manhattan, but I really like to escape from the city as often as possible. This summer, I have spent a lot of time hiking in upstate New York and in Michigan’s Upper Peninsula.

Thank you Adam for sitting down with us and giving us some great insight into the world of ediscovery consulting in antitrust matters.

 

Make Your Case by Leveraging ESI Experts at Trial

Preparing for and responding to electronic discovery is a complex undertaking and thus very difficult for courts and jurors without technical backgrounds to fully comprehend. As disputes over ESI take an increasingly prevalent role in litigation, attorneys are turning to ESI experts to explain and justify their ediscovery conduct when it is attacked. Moreover, the judiciary has begun to suggest that having third-party ESI professionals serve as expert witnesses is a best practice.

Qualifying an ESI Expert
ESI experts must be qualified to testify. Pursuant to Federal Rule of Evidence 702, titled Testimony by Experts, a witness qualified as an expert by knowledge, skill, experience, training or education may testify as to scientific, technical or other specialized knowledge. Rule 702 further provides that expert testimony must be useful to a trier of fact and be based upon sufficient facts or data as well as reliable principles and methods.

A notable case on this topic, Mintel v. Int’l Group, Ltd. v. Neerghen, 2009 WL 1033357 (N.D.Ill. Apr. 17, 2009), is instructive regarding judicial standards governing the qualification of ESI experts under Rule 702. In Mintel, the court rejected the defendant’s argument that the plaintiff’s expert testimony should be barred because it was based merely on experience and thus was not testable. In reaching its decision, the court noted that Rule 702 explicitly permits expert testimony based on experience and testability is not a requirement to establish reliability. Rather, the court focused on whether the expert’s testimony would be helpful to the trier of fact and readily concluded that the expert’s testimony regarding spoliation would be extremely helpful, especially considering the complexity of the electronic evidence issues involved in the case.

The conclusion to be drawn from Mintel is that when courts rule whether to qualify an ESI expert to testify, they will look at both the reliability of an expert’s testimony and whether the testimony is relevant. Mintel makes clear that experience is a valid method of qualifying an ESI expert. Currently, there is not a uniform credentialing system that can be used by courts as a benchmark for determining whether an ESI expert is qualified; therefore, courts will continue to look toward an ESI expert’s training and experience.

When to Examine an ESI Expert
In light of Mintel‘s emphasis on the pragmatic value of ESI expert testimony in explaining complex issues to lay jurors, the question arises: what can ESI experts testify about that would be helpful to a trier of fact?

  • Sanctions. Were preservation efforts sufficient? Was destruction of electronic evidence intentional? Were production efforts reasonable? Are sanctions warranted for these or any other reasons?
  • Privilege Waiver. Did a party waive privilege or work product protection over inadvertently produced documents by failing to conduct reasonable steps such as competent keyword searches to prevent the disclosure?
  • Authentication. Is there sufficient support that ESI is what it purports to be in order to be authenticated as evidence for trial? Is there a proper chain of custody? Is there other technical support such as metadata, history or hash values?

Choosing the Right Expert
There are two types of experts that can potentially be called to trial – consulting and testifying experts. A consulting expert is one who has worked with the case at trial in some capacity, from document retention planning through production. Consulting experts may be called upon to testify regarding their ediscovery conduct and its defensibility. In contrast, a testifying expert is one who was not personally involved in the case. A testifying expert is often an ESI consultant from a noninvolved organization or someone with a doctorate in statistics. A testifying expert is meant to provide a more objective, unbiased analysis.

Regardless of whether a consulting or testifying expert is examined, choosing an expert with prior testifying experience is advisable. An expert who has previously testified is likely to be easily qualified and will also more likely present persuasive testimony. It is also crucial to make sure that any ESI expert you retain to assist in the ediscovery process rigorously documents his or her activities as this will greatly strengthen his or her credibility and persuasiveness if examined at trial.

Conclusion
Trial attorneys cannot ignore the benefits that flow from providing an ESI expert to explain their ediscovery conduct at trial. Electronic evidence issues are increasingly becoming case-determinative or, at least, very expensive as courts deal out sanctions for ediscovery misconduct and negligence. Be prepared to make your case that your ediscovery conduct was reasonable and should not be sanctioned by leveraging ESI experts at trial.

 
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