Discovery isn’t restricted to data found on file servers, laptops and phones anymore. Increasingly, data is being collected from the internet, which poses unique challenges. Courts are grappling with how much and when such data is discoverable, leaving companies to determine how to collect and preserve the information in case it is needed. Types of web content Internet content includes websites, social media and videos. In addition, the Internet of Things is fast becoming an important source of data. The use of or need to connect everything to the internet continues to increase year over year. There are a range of applications that utilize technology to communicate and interact with others via the internet, such as household appliances, security systems, smart watches, cars, medical equipment and other devices that store and receive or transmit data. These data sources provide a wealth of information that may be relevant to a litigated matter. For example, social media can provide data on employment, residential history, social media mentions, geolocation, profiles, groups/organizations, or authored content like blogs, YouTube videos, reviews, etc. The most popular social media sites are Facebook, LinkedIn, Twitter, YouTube and Instagram, but there are many others that litigants could potentially mine for eDiscovery purposes. eDiscovery challenges Collecting internet data presents significant issues due to its size, difficulty in collecting it and retaining it for possible future litigation. These concerns are compounded by the fact that this data consists of dynamic content.
- Finding and preserving the data. Attorneys are typically challenged by having to find the data they need. There are applications that help identify devices connected to the internet like Shodan but that may not be enough to locate all sources. One of the biggest issues with collecting internet data is that it isn’t static. Most web content is fluid and ever-changing, plus it is easily deleted or overwritten. Some applications regularly store data in storage systems or allow the end-user to make their own determination if they want to store their data. However, the application’s data retention policies might not meet discovery requirements. This poses another problem: how to collect information from devices that don’t have the ability to protect data if needed on a litigation hold?
- Capturing data. Companies must understand how and when to capture internet data. Maintaining proper digital chain of custody – that is, establishing that electronic evidence presented to the court is the same as what was originally collected – is crucial. This is difficult because electronic information is easily changed or deleted, and the record of the changes can be hard to document. That leaves such evidence potentially vulnerable to legal challenges.
When data is captured, its metadata must be captured as well. Time and date of the collection is critical since the data isn’t static. In addition, website URL, IP addresses, source code and other information may also be relevant. The universe of possible data locations that might hold relevant information is dramatically expanding. Companies must be aware of these issues because internet data has become a major component of virtually every type of litigation. It is more important than ever to have a team of experts on your side to advise on creating a plan to mitigate the risks associated with these data sources. To learn more about how CDS can help with data collection and preservation, contact us for a consultation.