DISCOVERY AND TECHNOLOGY IN DISPUTES
CD: Could you provide an insight into some of the ways that new technology has impacted dispute resolution processes? What particular challenges and legal considerations do these new technologies generate?
Sykes: A huge amount of business is now done using mobile communications such as SMS, FaceTime and Skype. We have recently conducted an investigation to establish where, geographically, a party was when an offer and acceptance was made; the point being that the geographic facts impacted the ability for a deal to be struck. Our approach involved investigations using mobile phone cell site analysis. There are often additional complexities with this sort of dispute, such as the text being composed in one jurisdiction but actually sent in another. Mobile phone forensics coupled with cell site analysis can assist in establishing the facts to be presented to the court. E-discovery, or e-disclosure as it is known in the UK, is of course a growing market. The collection and harvesting technology behind e-discovery has enabled large volumes of data from many disparate sources to be available for assessment and has shaped the discovery process. In the banking industry, we are starting to see a lot more user encrypted data, both in the form of collections of files, such as a .zip file, or as attachments to emails and instant messages. Often if the custodian is still accessible you can obtain the passphrase, but it is far from unusual to find that the custodian has either moved on, or may not be cooperative. We are finding that a range of password cracking techniques, often Brute Force and Rainbow Tables, will be required in the harvesting stages of e-discovery. The use of personal devices for storing corporate information is now commonplace, but retrieving information stored on employee devices for the purpose of litigation after they have left the organisation can be challenging. A clear BYOD policy and simple staff exit processes help ensure both corporate and staff privacy protection.
Jul-Sep 2015 issue
Keating Muething & Klekamp PLL
Kroll Ontrack International
Pillsbury Winthrop Shaw Pittman LLP