A Different Diary in Every Pocket – Mobile Device Discovery Series, Part 2

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A multi-part series on the logistical, technical, and legal challenges posed by the proliferation and popularity of smartphones and tablets

In the first Part of this series, we reviewed the ubiquity, usage, and business realities of mobile devices.  In this Part, we continue our discussion of mobile devices in eDiscovery by reviewing what is encompassed by “mobile devices” and what data is potentially contained on them.

What We Mean by “Mobile Devices”

When we refer to mobile devices, we are referring to a much larger and more diverse category than when we talk about computers.  In a given organization, employees are likely to have only a few different models of laptop or desktop in use, and those models are likely to be substantially similar – often all from the same hardware maker and well-documented by IT.  Mobile devices, because of Bring Your Own Device (BYOD) policies and the nature of consumer technology, are a very different story.

Smartphones are far and away the most used type of mobile device (57% of all digital minutes, compared to just 9% for tablets).  Because of their importance, most organizations want their employees to use them for work, and employees typically want to be able to work on them.  But, smartphones are expensive, users have strong feelings about which one they use, and switching between two devices reduces productivity.

So, the trend over the last eight years has been towards allowing employees to bring their own device and connect it to company email and other mobile services.  A majority of companies now have or are planning to adopt BYOD-friendly policies, and many organizations are planning to start requiring employees to bring their own device.  As a result, a BYOD organization will have a veritable cornucopia of different smartphones in use by its employees.

The nature of consumer technology compounds this problem.  New smartphone models are released by major manufacturers every year.  Multiple variations on each new model are released at the same time to appeal to different consumers, and competition over features has led to devices bristling with data recording sensors and a range of hardware:

The latest smart phones contain a microphone, fingerprint reader, barometer, accelerometer, compass, gyroscope, three radio systems, near field communications capability, proximity, touch, light and moisture sensors, a high-resolution still and video camera and a global positioning system.

Some people replace their smartphone every two or more years when they are able to or need to, while others get each year’s new model to have the latest technology.  And, like with the PC/Mac divide, there are two major operating systems in use across these myriad devices: Android (from Google, in use by many makers) and iOS (from Apple, exclusive to Apple devices).

Our Ghosts in the Machine

In 2014, the Supreme Court summed up the kind of all-encompassing data source that smartphones have become:

First, a cell phone collects in one place many distinct types of information – an address, a note, a prescription, a bank statement, a video – that reveal much more in combination than any isolated record.  Second, a cell phone’s capacity allows even just one type of information to convey far more than previously possible.  The sum of an individual’s private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions . . . .  Third, the data on a phone can date back to the purchase of the phone, or even earlier. . . .

Finally, there is an element of pervasiveness that characterizes cell phones . . . it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.  [emphasis added]

Riley v. California, 573 U. S. ____ (2014).

These digital records can include a wide variety of phone-specific materials, mobile application and Internet specific materials, and traditional personal computing materials:

  • Phone-Specific Materials: call logs, SMS (short messaging service) text messages, MMS (multimedia messaging service) messages, voicemails, contacts
  • Mobile Application and Internet Materials (Smartphones or Tablets): iMessage messages, voice memos, notes, photos, videos, music files, navigation history, GPS data, Wi-Fi network history, links/favorites, search history, browsing history
  • Traditional PC Materials (Smartphones or Tablets): Word documents, Excel spreadsheets, PowerPoint presentations, PDF files, email (work and personal), calendar (work and personal), contacts (work and personal)

A single modern smartphone will routinely contain thousands upon thousands of unique records, when all of these types of materials are considered together.

Upcoming in this Series

In the next Part of this series, A New Collection Puzzle in Every Pocket, we will continue our review of mobile devices in eDiscovery by discussing the technical realities of acquiring all these materials from so many different mobile devices.

About the Author

Matthew Verga

Director of Education

Matthew Verga is an electronic discovery expert proficient at leveraging his legal experience as an attorney, his technical knowledge as a practitioner, and his skills as a communicator to make complex eDiscovery topics accessible to diverse audiences. A fourteen-year industry veteran, Matthew has worked across every phase of the EDRM and at every level from the project trenches to enterprise program design. He leverages this background to produce engaging educational content to empower practitioners at all levels with knowledge they can use to improve their projects, their careers, and their organizations.

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