The rapid proliferation of mobile devices has transformed the way we communicate and conduct business. As employees increasingly rely on personal smartphones, tablets, and messaging apps for work-related tasks, the legal landscape surrounding e-discovery mandates has evolved significantly. In this paper, we delve into the complexities faced by information technology providers in the context of mobile communications e-discovery.

1. The Impact of Personal Devices and Third-Party Applications

Corporate Compliance Risks: The explosive growth in the use of personal devices (such as smartphones and laptops) for business purposes poses significant corporate compliance risks. Employees often use these devices to exchange critical information related to company operations.

Third-Party Messaging Platforms: Third-party messaging apps, including those with ephemeral and encrypted features, further complicate e-discovery. These platforms can swiftly take key communications off-system, making data preservation and collection challenging.

For instance, after the events of January 6^th 2021, in the Nation’s Capital, the communications of many federal government employees were surreptitiously deleted and/or erased. Leading up to the election, there were also many instances of employees purposely deleting SMS messages, emails, and other government related communications.

2. DOJ Expectations and Compliance Measures

The U.S. Department of Justice (DOJ) has expressed concern about the impact of personal messaging on its ability to conduct effective investigations. In response, Deputy Attorney General Lisa Monaco issued the “Monaco Memo,” emphasizing raised expectations for companies regarding employee personal device data retention and disclosure.

Key Compliance Factors:

    – Timely Preservation: Corporations must ensure timely preservation, collection, and disclosure of all non-privileged responsive documents, including data from personal devices used for business purposes.

    – Practical Challenges: Companies face practical limits in controlling personal devices. Balancing DOJ expectations with international data protection laws is crucial.

    – Robust Compliance Programs: Effective compliance programs include clear personal use policies, comprehensive training, and enforcement mechanisms.

3. Importance of Self-Disclosure

The DOJ encourages expedited investigations and charging decisions. Companies should structure their systems and processes to facilitate swift responses to legal requests.

Miller Keynote: The DOJ’s guidance underscores the urgency for both prosecutors and corporate counsel to expedite investigations.

4. Regulatory Enforcement Trends

Increased Focus: U.S. regulators are increasingly targeting chat and text communications, especially those occurring on personal devices.

Penalties: Recent penalties against financial institutions highlight the importance of compliance in mobile communications e-discovery.

5. Text Message Archiving and FOIA

Public Records: Text messages, including those from personal and employer-issued mobile phones, are likely subject to Freedom of Information Act (FOIA) requirements.

State-Specific Laws: Whether a text message qualifies as a public record depends on state laws.

Conclusion

As mobile communications continue to shape our professional lives, service providers must navigate the intricate landscape of e-discovery mandates. By implementing robust compliance measures, fostering self-disclosure, and staying informed about regulatory developments, companies can effectively manage e-discovery challenges in the mobile era.

KoolSpan encrypted text, voice, video, and file-sharing products put the power of control back to IT and away from end-users.  Since KoolSpan servers can reside inside an enterprise data-center or hosted via Virtual Machine (VM) in the Cloud, all the information is effectively controlled and captured by the enterprise’s centralized IT organization.

KoolSpan also integrates with best of breed Mobile Device and Mobile Endpoint Management systems so that policies can be pushed to devices OTA (over the air) and eDiscovery and retention can be more easily accomplished.

E-Discovery policies and mandates can be met by implementing KoolSpan products.

For more information visit koolspan.com