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.
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.
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.
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]
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.