A New Mobile Devices Case Every Few Months – Mobile Device Discovery Series, Part 4

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.

Case Law Survey Part 1

In this case law survey, we will briefly review a dozen cases from across the past five years that have touched on mobile device discovery issues.  We will review them in chronological order:

• E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., No. 11-cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)
  • In this case from late 2012, the Magistrate Judge allowed the discovery of not just email but social media communications and text messages as well. In discussing the novelty of social media and mobile device discovery, he wrote:

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]

• Garcia v. City of Laredo, 702 F.3d 788 (5th Cir. Dec. 12, 2012)
  • In this case, the Fifth Circuit addressed the question of whether or not the data on mobile phones and other mobile devices is protected by the Stored Communications Act (“SCA”). It concluded that it is not:

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]

• In Re: Pradaxa, No. 3:12‐md‐02385-DRH-SCW (S.D. Ill. Dec. 9, 2013)
  • In Case Management Order 50 of this consolidated multi-district litigation, the Judge ruled on a motion for sanctions over failure to preserve text messages on employee phones (among other issues). On that issue, the party argued that the newness and burden of text messages as a source should shield them from serious sanctions, but the Judge was not convinced:

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.

• Hosch v. BAE Systems Information Solutions, Inc., No. 1:13-cv-00825-AJT-TCB (E.D. Va. Apr. 24, 2014)
  • In this case, the Plaintiff was ordered to turn over his iPhone and Blackberry for forensic examination because expected materials that were missing from his productions. When they were examined, it was determined that he had “wiped” them recently:

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.

• Small v. Univ. Med. Center of S. Nevada, 2:13-cv-00298-APG-PAL (D. Nev. Aug. 18, 2014)
  • In this case the Special Master recommended case-dispositive sanctions against the Defendant for failing to preserve several key sources of information and for other discovery failures and misrepresentations. Mobile devices were one of the key areas of failure discussed in the recommendations:

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.

• Rajaee v. Design Tech Homes, No. H-13-2517 (S.D. Tex. Nov. 11, 2014)
  • In this case, an employer that allowed employees to use their personal mobile devices for work communications used its remote device access to initiate a factory reset of a terminated employee’s personal iPhone. This deleted both the business communications on the device and all of the employee’s personal contacts, messages, photos, videos, passwords, etc.  The employee sued over the loss on several different legal grounds, including violations of the Electronic Communications Privacy Act (“ECPA”) and the Computer Fraud and Abuse Act (“CFAA”).  The federal District Court concluded that the data on his mobile device was not protected by the ECPA, and the types of losses he incurred were not covered by the CFAA.  The case was then transferred to state court to proceed on other legal grounds.

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.