Going Mobile: Technological Advancements in Mobile Device Collection

In our last post, we discussed challenges associated with mobile device collection that may deter litigants from including data from mobile devices in the discovery process, despite the considerable evidentiary value.

However, available technology to address the challenges is changing, and new providers are entering the eDiscovery market with innovative approaches to mobile device collection. One of those new providers is ModeOne, which provides a self-service framework to enable its clients to easily obtain and analyze vital evidence stored on smartphone and short-message chat applications.

In an interview with Matthew Rasmussen, Founder & CEO of ModeOne, he discussed some of the challenges he experienced as a practitioner, which led him to start his own company with a different technological approach. According to Rasmussen, before founding ModeOne, he managed eDiscovery and legal technology projects for almost 20 years, including 7 1/2 years with O’Melveny & Myers LLP. “During that time, perhaps my biggest pain point in managing eDiscovery projects was discovery involving mobile devices”, said Rasmussen.

Rasmussen identified challenges ranging from a convoluted process to expensive and unpredictable collection costs: “Managing the collection process from procurement of bids and choosing a forensics provider to coordinating with that provider on the collection process to working with them to obtain the data was complicated, and often took weeks to complete – even for a single phone”, he said. “We were paying as much as $4,400 per phone, and the cost for the service wasn’t a fixed price, so we often paid more than estimated if the provider needed to bill more hours for things like project management or travel to resolve unexpected problems.”

Data issues were a challenge as well. “The data was also typically delivered in a format like Excel, where we might have as much as 800,000 texts across 2,000 text threads to filter, review and analyze. Or the entire text collection would be loaded to the review platform as PDFs, driving up hosting and review costs considerably. On one case, 10 gigabytes of data became 40 gigabytes of color PDFs and it sat in the review database for four years billing $12.00 a gigabyte per month. That’s over $23,000 in hosting costs”, said Rasmussen.

Those pain points were what led Rasmussen to start his own company: “Knowing that I wasn’t alone in the industry in experiencing these issues, I felt there had to be a better way to collect the data on the phone likely to be most important in most cases – typically things like text messages, photos/videos, contacts, call history and more. So, I began working with a team where it took about 90 days of R&D to figure out how to crack the code on how to get into mobile devices. From that success, we started ModeOne to develop technology specifically from the end clients’ perspective to address the many challenges associated with mobile device discovery”, he said.

The principles behind ModeOne’s approach are four-fold:

1. Targeted collection: Focus on targeted collection of the data most likely to be potentially responsive in the typical case in a forensically-sound manner so that the collection process is defensible, and the evidence can be properly authenticated.
2. Collect remotely: Enable the data to be collected remotely within any network environment to eliminate shipping and shorten the collection process.
3. No hardware requirement: Eliminate the hardware costs associated with the collection kits typically associated with forensic collection.
4. Early case assessment: Provide an ECA tool to enable clients to cull through the collected data to select the data that needs to be moved on to the review platform.

ModeOne currently supports collection from 22 apps on the phone, including texts, contacts, call logs, photo library, list of installed apps, calendar, notes, locations, and a variety of messaging apps including WhatsApp & WeChat (the most popular chat app in China). They are continuing to add other applications based on client priorities. While the collection time varies depending on how many apps collected, the average collection time per device is 90 minutes.

The speed in which ModeOne can conduct targeted collections from devices makes it a preferred option for tight deadlines over traditional approaches. Rasmussen provided two examples of recent projects the ModeOne team conducted to illustrate their response to urgent deadlines:

• One project involved a client where the data from one device needed to be provided ASAP. According to Rasmussen, the data from that device was collected, reviewed and produced to opposing counsel within just four hours.
• In another example, the ModeOne team performed a mass collection from 318 devices within 2 1/2 weeks for a client to meet a Federal compliance requirement.

ModeOne’s approach to collect data remotely is facilitated by their use of digital signing and secure communications mechanisms, as well as lightweight agents to perform collection. According to Rasmussen, this enables their team to quickly get their collection apps to run in virtually any network environment.

Because of the speed in which the data can be collected, ModeOne is able to provide a predictable pricing model to its clients, making it an ideal solution for promoting access to justice for solo and small law firms looking to support cases such as divorce and child custody cases for their clients where the cost for collection from phones has historically been cost-prohibitive.

ModeOne isn’t for every case, however. There are still certain situations where a full file system forensic collection of a mobile device is warranted, especially in cases involving law enforcement, civil cases where there is an indication of intentional destruction of evidence, or cases involving collection from specialized apps. ModeOne’s platform isn’t designed for those cases, though they do offer custom collection services on a case-by-case basis.

However, ModeOne is a viable alternative to complicated and costly traditional mobile device collection approaches for cases in which the need to collect can be limited to the core apps typically involved in litigation. For those cases, this makes the collection and analysis of important data from mobile devices cost-effective and proportional, which promotes access to justice by ensuring mobile device evidence is included in discovery for many more cases.

Conclusion

Mobile device discovery is becoming increasingly important as we are constantly using our devices for personal and work tasks. In this series, we’ve discussed several considerations that are part of the landscape of mobile device discovery today, including Device Management Policies and Mobile Device Management (MDM) Solutions, Data Discoverable on Mobile Devices, Metadata Considerations with Mobile Device ESI, Mobile Device Data in Criminal Investigations, Recent Mobile Device Case Law Trends (here and here), Traditional Challenges Associated with Mobile Device Collection and technological advancements we see in the industry (in this post).

It’s important to stay abreast of changes in terms of available mobile device policies, device management trends, types of data and metadata that are discoverable, case law related to discovery of mobile devices, and (of course) the direction that technology is heading. It can also be challenging to keep up with it all. If you’re not staying abreast of these trends, work with a provider who is and can advise you on the latest best practices for mobile device discovery.

For more regarding Cimplifi forensics and collections capabilities, click here.

Disclosure: ModeOne is a partner of Cimplifi.