Challenging Source Developments, 2018 Year-In-Review Part 3

A year-end round-up of the biggest industry news stories, most useful publications, and most notable cases of which you should be aware from 2018

In “Because You Need to Know What You Need to Know,” we reviewed the year in our educational program and previewed the topics for this series.  In “Data Privacy Developments,” we reviewed the first of our two most frequent 2018 news topics.  In this Part, we review the second: challenging source developments.

As we noted in the first Part, our review of our monthly news round-ups from 2018 revealed that data privacy issues were one of the two most frequently occurring topics, and challenging source developments were the other.  In this Part, we review those challenging source developments, including: mobile devices, social media, ephemeral messaging and more.

Continuing Mobile and Social Media Source Growth

As we discussed this year in our Social Media Series and our Mobile Devices Series, both continue to grow in frequency and importance as litigation data sources:

• Social Media:
  • Pew Research Center’s Social Media Use in 2018 reveals that, as of spring 2018, “68% of all U.S. adults are Facebook users, while 35% use Instagram, 29% use Pinterest, 25% use LinkedIn and 24% use Twitter” [emphasis added]. A majority of users use more than one of these five services, and young users average more services than older ones.
  • And, according to a recent survey, 8% of responding law firms handled cases involving the collection and processing of social media data in the past year – an increase of 9% over the prior year. Moreover, 28% of responding law firms now indicate dealing with social media in 11 or more matters in the prior year – a 59% increase from the year before.
  • The range of data available from these social media sources continues to evolve too. For example, this year we learned that Facebook data might include call and message logs from users’ Android mobile devices.

• Mobile Devices:
  • Smartphones are owned by more than 198 million people in the United States, and 65% of all minutes spent on digital devices in the U.S. are spent on smartphones or tablets rather than desktop or laptop computers, and social media and instant messaging are the leading uses, accounting for 21% of all mobile usage minutes in the U.S.
  • As of 2015, 80% of people were using texting for business purposes. Another recent survey found that 83% of organizations now allow employees to use their personal devices for business communication.
  • Mobile devices are turning up frequently as relevant sources in litigation. According to a recent litigation trends survey, roughly half of all litigation matters in 2015 and 2016 involved preservation and/or collection of mobile device data.  Of the mobile devices implicated in 2016, 93% were smartphones.

Accelerating New Source Adoption

An increasing number of smartphone owners (72% of American adults) are also adopting the use of new messaging applications as an alternative to text messages or messaging through one of the major social media services.  These applications come in general purpose (e.g., WhatsApp), auto-deleting (e.g., Wickr), and anonymous (e.g., Whisper) varieties, and they are much more popular among the young, suggesting a major shift in sources may be coming in the future:

Some 56% of smartphone owners ages 18 to 29 use auto-delete apps, more than four times the share among those 30-49 (13%) and six times the share among those 50 or older (9%).  Similarly, 42% of smartphone owners ages 18 to 29 use more general messaging apps like WhatsApp or Kik, compared with 19% of smartphone owners ages 50 or older. 

Usage of alternative communication channels – including ephemeral (i.e., auto-deleting) messaging and instant messaging – is growing inside companies too.  Uber made headlines in November 2017 when an employee testified about the company’s internal use of ephemeral messaging app Wickr, and Uber is not alone.  In 2014, less than a year after its launch, instant messaging software Slack became the fastest-growing workplace software ever, and its rapid adoption has only continued.  Employees are communicating with each other more rapidly and in more ways and places than ever before.

Evolving Collection Challenges

Mobile Devices, in particular, present ever-evolving collection challenges as device and software makers employ better security measures, stronger encryption, and more.  This year, we went from stories in the Spring about how “The Feds Can Now (Probably) Unlock Every iPhone Model In Existence” to stories in the Summer about “Apple to Close iPhone Security Hole That Law Enforcement Uses to Crack Devices.”  More recent iOS updates this Fall have affected the ability to reliably collect from iCloud backups instead of from devices, as well as rendering a popular iPhone cracking tool ineffective.

The rise of new messaging applications as sources presents more challenges in the aftermath of collection, when large sets of instant messages or other communications must be parsed in some way into discrete, reviewable records.  More and more often, custom processing work is being required due to the inclusion of these new mobile or desktop messaging applications in the scope of collection.

New Cases of Note

This year also included a few new cases of note on these topics:

• Forman v. Henkin, 2018 NY Slip Op 01015 (N.Y. Feb. 13, 2018)
  • In this case, New York’s highest court rejected any “heightened threshold” for the discoverability of non-public social media materials and affirmed that the same rules apply to social media materials as to any other source.

• In re Appraisal of Kate Spade Company, No. 2017-0714-AGB (Del. Ch. Jun. 21, 2018)
  • In this case, the Delaware Court of Chancery confirmed that the duties of preservation and collection extend beyond email to text messages and other forms of electronic communication.

• Commonwealth v. Mangel, 2018 PA Super 57 (Pa. Super. Ct. Mar. 13, 2018)
  • In this case, a Pennsylvania appellate court addressed the authentication of social media evidence and, despite paying some lip service to the language of the Texas Rule, seemed to actually adopt the higher bar of the Maryland Rule.

• Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018)
  • In this case, the court compelled non-party insurance agents to produce text messages over their Fifth Amendment objections.

Upcoming in this Series

Next, in the final Part of this series, we will review a selection of the most interesting cases and most useful publications from 2018.