“Digital Evidence is Everywhere”
Due to the complexity and demanding nature of corporate legal work more and more general counsels and their staff attorneys are realizing that digital evidence is everywhere. What are the facts?
Today, there are more than 286 million wireless subscribers in the U.S. That’s just over 91% of the total U.S. population. By the year 2013 that number will be 100%. Yes, everyone will have a mobile phone and over 90% of those phones are capable of sending and receiving text messages.
Text is the new talk. In the second quarter of 2008 U.S. mobile subscribers sent more text messages than they placed phone calls. Text message use has only exponentially ramped upward since then. How much? Text messaging is doubling every year.
All of this digital messaging on personal handheld devices is changing the complexion and challenges of discovery in civil and criminal cases to which corporations must respond. It is also changing the very nature of internal investigations that in-house counsel carry out frequently on behalf of their corporations.
“The reason why the cell phone is important is that you are carrying around a personal diary of who you talk to and often what you talked about”, said Robert Morgester, California Deputy Attorney General. Add to that personal diary the photographs and videos your employees take, the e-mail and text messages they send and receive, and employees’ address book and contacts. All of this information is electronically date and time stamped. And soon because of technology convergence with geographical positioning systems (GPS) this information will also be stamped with employees’ location (latitude and longitude).
If in-house counsel focuses on just traditional methods of finding relevant evidence, how wide will the gap be between what he or she finds pursuant to an internal investigation or discovery process versus what could have been? Digital evidence in employees’ personal diaries can tell much of the story and in-house counsel who leverage that potential will increasingly use it to effectively represent their corporations.
