Pokemon Go, a Scary Trend for any E-Discovery Practitioner

by Exterro, Inc.
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One word that I never thought would have any cultural relevance ever again, Pokemon. I remember the days when Nintendo was the “it" thing to have and Pokemon was at the forefront of that fad. But that was the 1990s, so when I heard last week that people were talking about Pokemon again it totally caught me off guard.

For all of you who don't know, Pokemon Go is a cultural phenomenon. There have been more app downloads of the Pokemon Go app than Twitter app downloads. Think about that, Twitter was founded more than 10 years ago and already Pokemon Go has surpassed them in less than 2 weeks. On top of this, Nintendo stock has doubled in that short amount of time.

So what exactly is Pokemon Go? Well, it's essentially just a treasure hunt game where you go outside in the real world with your smart phone, open the app, and “hunt" for animated Pokemon characters that randomly pop up… Of course, this means walking (or sometimes driving!) around with your eyes on your phone screen, which has led to more than a few injuries, but that's a blog for another time.

E-Discovery Implications of Pokemon Go

The scary part for e-discovery practitioners is that this location-based, virtual reality game may be the next big thing for corporations to emulate and spin off for their own business purposes. Right now, you can bet your lunch that app designers for Fortune 500 companies are trying to steal some of this Pokemon Go momentum and thinking of ways to create their own location-based, virtual reality app.

Unfortunately for legal teams, new technology usually causes e-discovery problems. (This blog post doesn't account for the legal liability nightmare which may unfold due to people get physically injured from playing Pokemon Go.)

Pokemon Go is part of and highlights a major trend that e-discovery practitioners have already been dealing with -- the rapid proliferation of new data types and how to successfully preserve and collect this data. According to the Federal Rules of Civil Procedure (FRCP), all relevant data is discoverable no matter what form the data takes. Data types such as is created from new social media and instant messaging applications are prime examples of how these new data types present unique e-discovery preservation and collection challenges. Just take a look at current case law and see for yourself.

The challenge remains how to preserve and collect these new data types. For any new data type preservation will likely be complicated. In fact, when we surveyed 400 legal and IT professionals, and asked what their current most controversial e-discovery issue was, unsurprisingly preserving/collecting new data types was the number one response, tallying 67% of the vote.

How can we start to solve this problem? Only through a collaborative effort between teams throughout legal, IT and HR will empower your company to preserve this data successfully. Try using these 5 steps below for creating a defensible process for preserving new data types (and maybe even Pokemon Go type data).

5 Basic Steps for Preserving New Data Types

1 Know Where Data is Stored

This becomes particularly critical when dealing with new data types such as mobile, chat/messaging apps, cloud services, and social media postings, which require a bit more nuance at the point of preservation than some of the more customary data sources (such as corporate email or computer hard drives).

2 Update Existing Data Management Policies

A sound data management policy that covers the increasingly disparate sources of data will in turn facilitate identification and subsequent collection of data types when the need arises. If there is uncertainty in what data types may exist within your domain/org, then it would certainly be a benefit to proactively perform an assessment of existing tools before a collection need arises.

3 Craft a Collection Plan

In addition, obtaining a clear understanding of any existing litigation (or other) holds, as well as any auditing/archiving/ logging actions already in place, will go a long way towards helping facilitate and execute a collection plan. Some content may already be retained/captured in a usable format, so it would be a benefit to reach out to appropriate stakeholder(s) within the organization to obtain clarity on their current policies prior to engaging in a collection effort.

4 Understand Scope

It's also important to understand the extent – the breadth and scope – of a given collection need. For example: how many disparate sources of data may need to be captured (email, 'loose' files, chat messaging apps, social media postings, structured data and/or legacy content, etc.); employees/individuals of interest; and also the date range of interest, if applicable.

5 In-House or 3rd Party

Depending on the nature of the request – whether it be regulatory/compliance-based or a litigation – one should determine the extent a subset (or all) of the collections can be performed internally, by properly trained staff, or when (particularly if subject to a litigation or an investigation, where deleted content may be of particular interest) it would be more prudent to leverage reputable 3rd party experts to perform the captures, which transfers any liability away from the organization and ensures defensible methods are employed.

Interested in learning more about successfully preserving new data types, download this e-book “

E-Discovery Survival Guide: Best Practices for Finding Responsive Data

[View source.]

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Exterro, Inc.
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