Short Message Collection – Best Practices

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The proliferation of short messages falling into the scope of discovery or disclosure is unabated. These can be mobile SMS texts or instant messages from popular applications such as WhatsApp, Viber, Slack, Skype and MS Teams.

Pipia v BGEO Group Ltd (formerly known as BGEO Group PLC) is a prime example of the courts recognising the significance of short messages. When an application for Extended Disclosure under the Disclosure Pilot was made, Mrs. Justice Cockerill had to consider the control and ownership of personal mobile devices belonging to key witnesses, as well as the reasonableness and proportionality of ordering their review.

WhatsApp messages were also relied upon to bring misconduct charges against a number of police officers in BC v Chief Constable of the Police Service of Scotland Livingstone. The officers claimed the inclusion of personal messages was unlawful and a breach of their Article 8 rights to privacy under the European Convention on Human Rights (ECHR), but the Court agreed that the disclosure was warranted for ‘public safety’ given the professional standards that police should be held to.

When short message data could reasonably be called upon, especially when timeframes are tight, it’s imperative to have a strategy. Over the last year, TLS has worked on its approach to the collection, review and production of short messages and can share some best practices as outlined below.

  1. TLS forensic consulting experts have conducted remote and targeted collections (mobile-device and cloud-based) throughout local and international lockdowns. As such, there has been no disruption to service or delivery and there’s been less inconvenience to the custodians in question. They’ve been able to schedule collections at a time that best suits them and have more transparency into the process.

    However, for all remote collections it’s essential to get the custodians’ buy-in and cooperation in advance. They’ll need to assist with logistics on the ground and part with their devices whilst the collections are carried out. Furthermore, custodians may expect precise searches to be run before data is exported, and searching by keywords needs to be approached cautiously.
  2. TLS’s solutions engineering teams have developed custom scripts to retain the bubble format for review in Relativity. Short messages can be reviewed as conversations or individual documents. Coding can be applied en-masse or at a document level so the messages look and feel as they were intended to be read.

    Said scripts also allow for the threading and searching of messages by their proximity. A chain of ten days’ worth of messages can be filtered to two days’ for clarity, or a single ‘hot’ message can be expanded to two days’ worth of messages for context.
  3. Finally, TLS’s proprietary short message application facilitates the redaction and production of messages in single-composed documents. This streamlines the ultimate review and comprehension for the Court and the client. As within Relativity, short messages can be produced as conversations, with irrelevant messages withheld or redacted and with the bubble format retained.

The importance of making short message review an efficient process is growing. The availability and use of messaging apps continues to explode and their evidentiary importance increases concurrently in the world of e-discovery. Leveraging remote collections, custom scripts and proprietary technologies can help ensure all relevant data is captured when short messages are in scope.

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