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Texas Lawyer’s In-house Counsel Summit Houston, Texas April 4, 2013 Bryan Foster Mark Michels Deloitte Financial Advisory Services LLP
Copyright © 2013 Deloitte Development LLC. All rights reserved. 1 The legal context3 Civil Criminal Mobile device proliferation17 Mobile device discovery and forensics21 Implications for in-house counsel27 Overview
Copyright © 2013 Deloitte Development LLC. All rights reserved. 2 Disclaimer The oral presentation and this written material (collectively, the “Materials”) contain general information only and Deloitte Financial Advisory Services LLP and its affiliates, are not, by means of these Materials, rendering accounting, business, financial, investment, legal, tax, or other professional advice or services. These Materials are not a substitute for such professional advice or services, nor should they be used as a basis for any decision or action that may affect your business. Before making any decision or taking any action that may affect your business, you should consult a qualified professional advisor. Deloitte Financial Advisory Services LLP and its affiliates shall not be responsible for any loss sustained by any person who relies on these Materials.
Mobile device discovery The legal context* * Deloitte Financial Advisory Services LLP does not provide any legal advice or address any questions of law.
Copyright © 2013 Deloitte Development LLC. All rights reserved. 4 Resolved: That Mobile Device Discovery is Not Really Interesting Pro : Mark Michels, Deloitte Discovery Con : Bryan Foster, Deloitte Discovery
Copyright © 2013 Deloitte Development LLC. All rights reserved. 5 Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense — including the existence, description, nature, custody, condition, and location of any documents or other tangible things and the identity and location of persons who know of any discoverable matter... Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence. Federal Rule of Civil Procedure 26(b)(1), Discovery Scope and Limits, Scope in General
Copyright © 2013 Deloitte Development LLC. All rights reserved. 6 In general, a party may obtain discovery regarding any matter that is not privileged and is relevant to the subject matter of the pending action, whether it relates to the claim or defense of the party seeking discovery or the claim or defense of any other party. It is not a ground for objection that the information sought will be inadmissible at trial if the information sought appears reasonably calculated to lead to the discovery of admissible evidence. Texas Rules of Civil Procedure, 192.3(a), Scope of Discovery
Copyright © 2013 Deloitte Development LLC. All rights reserved. 7 (a) In General. A party may serve on any other party a request within the scope of Rule 26(b): (1) to produce and permit the requesting party or its representative to inspect, copy, test, or sample the following items in the responding party’s possession, custody, or control: ******* (B) any designated tangible things; Federal Rule of Civil Procedure 34. Producing Documents, Electronically Stored Information, and Tangible Things...
Copyright © 2013 Deloitte Development LLC. All rights reserved. 8 FRCP 34 Advisory Committee Notes to 2006 Amendments Rule 34(a)(1) is expansive and includes any type of information that is stored electronically.... The rule covers – either as documents or as electronically stored information – information "stored in any medium," to encompass future developments in computer technology. Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments.
Copyright © 2013 Deloitte Development LLC. All rights reserved. 9 A party may serve on another party — no later than 30 days before the end of the discovery period — a request for production or for inspection, to inspect, sample, test, photograph and copy documents or tangible things within the scope of discovery. Texas Rules of Civil Procedure, 196.1(a), Request for Production and Inspection to Parties
Copyright © 2013 Deloitte Development LLC. All rights reserved. 10 Example Request Please produce for inspection any and all mobile phones possessed by the Defendant from October 1, 2010 to present. (Plaintiff’s counsel will arrange for a replacement phone during the time of the inspection, not to exceed ten (10) business days from the date of production.) Discovery request for mobile phones
Copyright © 2013 Deloitte Development LLC. All rights reserved. 11 “Generally, the duty to preserve arises when a party has notice that the evidence is relevant to litigation or...should have known that the evidence may be relevant to future litigation.” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612 (S.D. Tex. 2010) (citation and internal quotation marks omitted). Preservation requirements — one court’s take
Copyright © 2013 Deloitte Development LLC. All rights reserved. 12 Defendant’s wiping of all emails, calendar items, text messages, and telephone records from... [Defendant’s mobile devices] warranted an adverse inference jury instruction regarding defendants’ failure to preserve data... that would have been advantageous to plaintiffs and disadvantageous to Defendants. Sanctions for failing to preserve mobile device data Southeastern Mechanical Services, Inc., v. Brody, et al., 657 F. Supp 2d 1293 (M.D. Fla. 2009)
Copyright © 2013 Deloitte Development LLC. All rights reserved. 13 Smartphone Preservation Failure Sanctions Defendants had a duty to preserve smartphone text messages but took no steps to preserve them. Failure to preserve smartphone text messages warranted sanctions. “[P]laintiffs will be permitted to introduce evidence at trial, if they wish... of defendants failure to preserve [smartphone] text messages. Plaintiffs may argue whatever inference they hope the jury will draw. Defendants may present evidence in explanation, assuming of course that the evidence is otherwise admissible, and argue that no adverse inference should be drawn.” Christou v. Beatport, 2013 WL 248058 (D. Colo.)
Copyright © 2013 Deloitte Development LLC. All rights reserved. 14
Copyright © 2013 Deloitte Development LLC. All rights reserved. 15 “Cellphone carriers reported that they responded to a startling 1.3 million demands for subscriber information last year from law enforcement agencies seeking text messages, caller locations and other information in the course of investigations.” Law enforcement cellphone demands More Demands on Cell Carriers in Surveillance, New York Times, July 8, 2012 http://www.nytimes.com/2012/07/09/us/cell-carriers-see-uptick-in-requests-to-aid- surveillance.html?pagewanted=all&_r=0
Copyright © 2013 Deloitte Development LLC. All rights reserved. 16 DOJ pen/trap devices ACLU, “New Justice Department Documents Show Huge Increase in Warrantless Electronic Surveillance, 09/27/2012” http://www.aclu.org/blog/national-security-technology-and-liberty/new-justice-department-documents-show-huge-increase
Mobile device discovery Mobile device proliferation
Copyright © 2013 Deloitte Development LLC. All rights reserved. 18 290+million mobile phones in the United States (ITU, 2011) 88% of American adults have a cell phone and 19% have a tablet computer (Pew, April 13, 2012) Almost half (49.7%) of U.S. mobile subscribers now own smartphones (Nielsen, February 2012) 4.4 billion mobile subscribers worldwide, (Ericsson Mobility Report Interim Update February 2013) 53 percent of employees are using their own technology for work purposes (Forrester Research, June 2012) Mobile device proliferation
Copyright © 2013 Deloitte Development LLC. All rights reserved. 19 27% of the U.S. population own tablets and about half (49%) own smartphones Among all respondentsTotal Trailing millennials (%) Leading millennials (%) Xers (%) Boomers (%) Matures (%) Desktop computer 4958798289 Laptop/Netbook 8285766766 Multimedia smartphone 4665583929 Multimedia handheld device 4837331912 Tablet device 1928302720 Dedicated e-reader 2920282225 Flat-panel high-definition TV 6269687280 Digital video recorder 414950 59 49% Minimum value Maximum value Midpoint value = 50 percentile 27% Deloitte Development, LLC “Devices, Consumption, and the Digital Landscape”, 2012
Copyright © 2013 Deloitte Development LLC. All rights reserved. 20 Half of tablet owners are currently employing their device in the work place, but few use it solely for work Tablets: personal/work overlapTotal tablet usage Personal use: 93% Work use: 54% Personal only: 46% Work only: 7% Both personal and work: 47% Q. TABLETS: Respondents using the tablet device for personal use, for work, or for both? Deloitte Development, LLC “Devices, Consumption, and the Digital Landscape”, 2012
Mobile device discovery Mobile device forensics
Copyright © 2013 Deloitte Development LLC. All rights reserved. 22 More than 3600 devices Multiple operating systems Often not backwards compatible Mobile devices and operating systems
Copyright © 2013 Deloitte Development LLC. All rights reserved. 23 Application data Audio Bookmarks Calendar Call logs Chat Contacts Cookies Device information Device settings Device voicemail Email Mobile data types Files Locations Memory card content MMS Notes Pictures SMS Tasks Video Web history Wi-Fi history
Copyright © 2013 Deloitte Development LLC. All rights reserved. 24 Physical — A physical collection of a mobile device, captures the physical device in its entirety. This is a bit for bit image of the data area of the mobile and allows the examiner to view the device’s unallocated space and recover deleted content in unallocated space Filesystem dump — A Filesystem Dump is a special variety of a Logical collection that captures everything on the physical device except unallocated space Logical — A Logical collection reads the data from the device and pulls it in to a report. The data collected will vary based on the capabilities of the device and vendor support Backup utility — Although using a Backup Utility such as iTunes or Desktop Manager to collect a device is a last resort; a device backup will often produce data on par with a File system collection or at a minimum above a Logical collection Hierarchy of mobile forensics collections
Copyright © 2013 Deloitte Development LLC. All rights reserved. 25 The ten most commonly desired data types are preserved in Physical, Filesystem and Logical collections. This is of course dependent on the device capabilities and vendor support. Data types from Physical, Filesystem and Logical Data typeIn collection AudioP/F/L CalendarP/F/L Call logsP/F/L ContactsP/F/L Device informationP/F/L Device voicemailP/F EmailP/F FilesP/F Memory card contentP/F/L MMSP/F NotesP/F/L PicturesP/F/L Server voicemailN/A SIM cardF/L SMSP/F/L TasksP/F/L VideoP/F/L
Copyright © 2013 Deloitte Development LLC. All rights reserved. 26 Current tools can be divided into software based tools and hardware based tools. No single tool covers all of the thousands of mobile devices. Hardware and software based solutions are needed to properly and efficiently perform collection and advanced data analysis. Tailor the tool to be used based on the make, model, and operating system of the mobile device being preserved. Secondarily, the type of preservation Physical, Logical or File System is selected based on the types of data of interest as well as the ability of the solution to extract that data. Industry standard tools
Mobile device discovery Implications for in-house counsel
Copyright © 2013 Deloitte Development LLC. All rights reserved. 28 Identify device types in enterprise Know location of devices Understand mobile device back-ups Discovery/incident response plan
Copyright © 2013 Deloitte Development LLC. All rights reserved. 29 Person to person communications (harassment) Personal email accounts (IP theft) Behavioral analysis (misuse of resources) Bank fraud (malware) VPN access to company network (hacking) Lost or stolen items — (PII) Investigations involving mobile devices
Copyright © 2013 Deloitte Development LLC. All rights reserved. 30 Does your company provide clear direction to their end users on acceptable use? Some mobile device leading practices –Encryption of device –Anti-virus/malware scanning –Backup procedures –Acceptable usage policy Mobile device security policy
Copyright © 2013 Deloitte Development LLC. All rights reserved. 31 Device types Usage dates Physical location of devices Device usage Service provider account information Mobile device asset tracking
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