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 the second Part, we reviewed what is encompassed by “mobile devices” and what data is potentially contained on them. In the third Part, we reviewed the realities of acquiring that data from them. In this Part, we begin our review of relevant case law.
If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation. [emphasis added]
An individual’s personal cell phone does not provide an electronic communication service just because the device enables use of electronic communication services, and there is no evidence here that the Defendants ever obtained any information from the cellular company or network. Accordingly, the text messages and photos stored on Garcia’s phone are not in “electronic storage” as defined by the SCA and are thus outside the scope of the statute. [emphasis added]
The basis for their argument seems to be that text messages are a less prominent form of communication and that the production of text messages is too burdensome. As to the former, text messages are electronically stored information, it does not matter that text messaging is a less prominent form of communication . . . . There is no question the defendants owed a duty to preserve this material. As to the latter . . . . The defendants cannot simply make a unilateral decision regarding the burden of a particular discovery request and then allow the information that is the subject of the discovery request to be destroyed. [emphasis added; internal citations omitted]
For this failure to preserve text messages, as well as the other discovery failures covered in the motion, they paid a monetary sanction of $931,500.
On that device alone, plaintiff permanently deleted all text messages, call logs, email data, voicemails, internet history and bookmarks, pictures, network activity history, contacts, calendars, notes, applications, social media, and video stored on the device. Plaintiff similarly deleted two years’ worth of information from his Blackberry device before producing it to defendant.
The extent, significance, and apparent intentionality of the spoliation (of both mobile device data and other materials) led the Judge to apply terminating sanctions, dismissing his suit with prejudice. The Plaintiff was also ordered to pay $55,755 in fees and $53,164.89 in costs.
UMC represented to the Court that it would produce text messages on January 17, 2013. Yet, UMC’s counsel and executives failed to instruct Kisner to preserve evidence until January 21, 2014. This delay in instruction caused the wiping of a substantial number of text messages prior to UMC’s text message production. [internal citations omitted]
. . .
Taking the 26,374 text messages identified by Sprint as having been sent or received since November 19, 2012 and subtracting the 64 text messages UMC produced, one finds that approximately 26,310 messages were lost or deleted by UMC prior to UMC making its production of text messages.
Upcoming in this Series
In the next Part of this series, Even More Mobile Devices Cases, we will conclude our review of cases touching on mobile devices in eDiscovery.