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Even More Mobile Devices Cases – Mobile Device Discovery Series, Part 5

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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 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 the fourth Part, we began our review of relevant case law, and in this Part, we conclude it.

Case Law Survey Part 2

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

The City similarly failed to make any effort to preserve text messages sent between NYPD personnel using department-issue smartphones . . . those devices were within the possession, custody, or control of the City, and were subject to the same preservation obligations as the City’s other ESI.

Finding gross negligence on the part of the Defendant, the Court applied a permissive adverse inference instruction.

  • NuVasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016)
    • In this case, relevant text messages on some mobile devices were lost – some because employees were unaware of the hold and some because of device replacements. Although a hold had been issued, confirmation from recipients was never obtained, and compliance with the hold was not monitored.  Initially, under pre-amendments analysis, the Court granted an adverse inference instruction based on the negligence shown, but it reconsidered that decision after the December 2015 FRCP amendments became effective.   Amended Rule 37(e) requires evidence of intentionality for adverse inferences, and since there wasn’t any, the Court allowed presentation of evidence about the loss instead.
  • First Financial Security., Inc. v. Lee, No. 14-1843 (D. Minn. Mar. 8, 2016)
    • In this case, text messages were of critical relevance to the question of whether the Defendant former employees had induced contractors to follow them from the Plaintiff to their new employer. Text messages were repeatedly requested, and their production was ordered, but “thousands” were deleted or lost:

Notably . . . there is a suspicious dearth of text messages from June through October of 2014.  Phone records show that defendants sent or received thousands of text messages during this period.  Defendants’ account of their accidental destruction of text messages . . . does not fully explain this gap, even if that account is true.  [emphasis added; internal citations omitted]  

Ultimately, the Court concluded that the Defendants’ discovery misconduct (including both this failure and others) was willful and awarded sanctions, including adverse inference instructions and attorneys’ fees and costs.

  • Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN (S.D. Fla. Mar. 22, 2016)
    • In this case, a large number of relevant text messages were lost due to a combination of deletion by individuals unaware of the hold and automatic deletion of older messages, which had not been suspended. Most of the messages were recovered from an alternative source, though some could not be.  Applying the amended version of Rule 37(e), the Court concluded that there was no evidence of prejudice, since most messages had been recovered (and there was no evidence the lost ones were critical or materially different), and no evidence of intent to deprive, so no sanctions were granted.

Applying Rule 37(e), as amended, the Court now concludes that Carmicle should have preserved electronically stored information on his personal iPad, . . . the Company-owned iPad, . . . [and] personal iPhone . . . in anticipation of litigation, and that this information was lost because Carmicle failed to take reasonable steps to preserve it.  . . . Because the Court finds that Carmicle acted with the intent to deprive . . . , the Court will presume that the lost information was unfavorable to Carmicle.  [emphasis added]

  • Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017)
    • In this case, the Defendants were sanctioned for failing to preserve text messages from the mobile phone of someone who was not technically their employee or a party to the action. The individual was working under contract for the Defendants, in close coordination with the defendants, and had a financial stake in the outcome of the case, and the Court concluded that, under the circumstances, his text messages were within the Defendants’ “control”:

Cleopatra argues that it cannot be sanctioned for the actions Cohn, a non-party, took and whose phone, Cleopatra contends, was not within their control.  However, the “concept of ‘control’ has been construed broadly.”  Documents are considered to be under a party’s control “if the party has the practical ability to obtain the documents from another, irrespective of his legal entitlement. 

. . . In sum, while determining practical control is not an exact science, “common sense” indicates that Cohn’s texts with Pyle were within Cleopatra’s control, and in the fact of pending litigation over Pyle’s role in the Film, should have been preserved.  [emphasis added; internal citations omitted]


Upcoming in this Series

Next, in the final Part of this series, Mobile Devices Wrap-Up, we will conclude our review of mobile devices in eDiscovery with a case law wrap-up, a review of key takeaways, and a few readiness steps you can take.


About the Author

Matthew Verga, JD
Director, Education and Content Marketing

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 ten-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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