Jarrett Coco, partner at Nelson Mullins Riley & Scarborough LLP supported by Colin Duncan and Michael Scholz, e-discovery collection specialists at the firm, analyzed the impact of Apple’s changes to its iMessage features in light of current eDiscovery practice prior to its public release. The Nelson Mullins team explored the new IOS16 editing capabilities, the ability to recall or “unsend” messages and the ability to recover deleted messages to see what impact it would have on electronically stored information (ESI).
In the top trending article on JD Supra last month, Jarrett Coco titled simply, “Apple’s iOS16 and E-Discovery,” considered the possibilities for ongoing and future matters where texts are requested:
So how does this impact e-discovery? For one, users will soon adopt these new features, so phones with edited and unsent messages will be collected in legal investigations. For matters where this data is relevant, receiving parties may try to ascribe intent or motive to editing or unsending a message. In addition, there may be more manual analysis within messaging databases, at least until forensic tools are able to do so. Perhaps most significantly, attorneys may need to adjust for this new functionality when assessing and implementing client discovery and investigation response strategy. Companies and their counsel should be mindful of this functionality, its impact on their legal holds, policies and practices, and how to address it in the midst of a legal matter.
Jarrett Coco, partner, Nelson Mullins
The Nelson Mullins team later tested the public release of iOS16 and its messaging capabilities, running into situations where current versions of their forensic tools addressing messaging systems did not take into account edits, unsends and deletes with varying results. In some cases, manual forensic and database work allowed the artifacts to be incorporated at great time expense.
In an article titled “Apple’s New Messaging Features Will Complicate E-Discovery” published by Law 360, Coco asserted that policies, practices and tools around IOS messaging data will need to adapt.
From our testing, edited iMessages initially appear only as empty chats within the collected conversation thread.
The edited iMessages are recoverable, but only by searching the messaging database on the phone. This is a manual process that requires the messages to be associated back to the proper conversation thread. The content of an unsent message does not appear to be in the messaging databases of either phone, yet there is a row in the database with metadata that signals that a message was unsent.
Recently deleted messages are still on the phone; however, they exist only as individual orphaned messages and are not extracted as complete conversation threads. More manual work would likely be needed to piece them back into a cogent conversation thread.
Jarrett Coco, partner, Nelson Mullins
EDRM is proud to host a webinar with Jarrett Coco to review his findings and recommendations for litigation teams facing Apple device collection now that iOS16 is becoming dominant. The complimentary webinar called “Apple’s New Messaging Features Will Complicate E-Discovery” will be held November 4, 2022 at 1pm ET.
