Don’t Get Scorched by Unearthed ESI: Lessons Learned about Collecting Data Properly

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By Adam Cohen

Electronic discovery becomes harder each time a great new smartphone hits the market or a cool messaging app sweeps up piles of users. New technology usually means new challenges for compliance, with legal obligations to monitor, search, and disclose ESI (electronically stored information) created using such new technology. Existing forensics and e-discovery tools may be at least temporarily inadequate to deal with new ESI-generating technologies, lagging behind until appropriately updated capabilities are developed and implemented. This does not mean we are free to ignore electronic evidence that isn’t easy to find by a few clicks of the mouse.

So how do we make sure we don’t miss important evidence when the current versions of our tools—even widely accepted “industry standards”—can’t recover content created using the latest and greatest app?