As mobile device sources have rapidly increased in number and importance, practitioners are struggling more often with the question of what format to use for such productions
Mobile devices have become frequent sources of relevant ESI in litigation. According to one 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 device sources implicated in 2016, 93% were smartphones. In its 2019 Report on Industry Trends for Law Enforcement, Cellebrite (maker of forensic tools for mobile devices) found that smartphones were far and away the most common source of digital evidence with 91% of “Investigator” respondents indicating that smartphones were “Very Frequent” (81%) or “Frequent” (10%) sources.
As mobile device sources have rapidly increased in number and importance, practitioners have struggled to adapt to these evolving expectations and challenges. Among those challenges is the question of what format to use for the production (or request) of mobile device data.
In Riley v. California, 573 U. S. 373 (2014), the Supreme Court summed up the kind of all-encompassing data source that smartphones have become: “. . . it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives – from the mundane to the intimate.” A single smartphone will routinely contain thousands upon thousands of unique records, including: phone-specific materials, mobile application and Internet materials, and traditional office documents. Despite this great volume and diversity, however, it has so far been text messages (including SMS, MMS, and OTT messages) that have been relevant most often.
Production of mobile device messages is complicated for a three main reasons:
Under the Federal Rules of Civil Procedure, litigants are directed (in FRCP 26(f)(3)) to negotiate about “the form or forms in which [ESI] should be produced” as part of their overall 26(f) meet and confer process. During this process, litigants are free to negotiate whatever stipulated production formats and specifications they wish for relevant mobile device messages.
If nothing is negotiated in advance, FRCP 34(b)(1)(C) allows the litigant requesting production of ESI to “specify the form or forms in which [ESI] is to be produced.” The requesting litigant is free to ask for whatever production formats and specifications they wish, though the responding litigant is also free to object and propose an alternative (FRCP 34(b)(2)(D)).
When no ESI production format has been stipulated through negotiation or specified in the request, FRCP 34(b)(2)(E)(ii) specifies that “a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.” This translates to a choice between producing ESI in its native format or in some other reasonably usable form or forms, which typically means near-paper or near-native format, accompanied by a load file with relevant metadata, searchable text, etc.
Courts have emphasized the importance of maintaining searchability and sortability in assessing whether a given production format is “reasonably usable” under the rules. In David A. Johnson & Alda, Inc. v. Italian Shoemakers, Inc., Case No. 3:17-cv-00740-FDW-DSC (W.D.N.C. Oct. 22, 2018), the plaintiffs repeatedly produced emails in PDF format rather than in native format with metadata, as required by the applicable discovery order. In its analysis, the court explained that the requirement in FRCP 34(b)(2)(E)(ii) to produce ESI “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” is satisfied “when the party provides documents that are searchable and/or sortable by metadata fields” [emphasis added].
In, Laub v. Horbaczewski, 331 F.R.D. 516 (C.D. Cal. Apr. 22, 2019), several disputes arose related to the production of relevant text messages and “iNotes” from the defendant’s iPhone, and among them was a dispute over the appropriate format in which to produce such materials. The Magistrate Judge reviewed the relevant rules and committee notes and came to the same conclusion as in the case above: that searchability is central to reasonable usability under the rules: “Further, ‘[i]f the responding party ordinarily maintains the information it is producing in a way that makes it searchable by electronic means, the information should not be produced in a form that removes or significantly degrades this feature,’” [emphasis added; citation omitted].
In reaching this conclusion, the Magistrate Judge, also reviewed prior case examples in which parties were directed to “produce any relevant text messages in native format or in another format agreed to by the moving party” and to “produce these text messages in a form that shows the sender, recipient, time, and date the messages were sent, as required by the Federal Rules of Civil Procedure.” She also stated a clear preference for producing in “aggregated” formats in which the various individual messages could be seen in context with each other, preserving “the integrity of the threads of communication reflected in the text messages” [emphasis added].
Based on the limited guidance available, it is clear that a litigant could propose or request production of mobile device messages in a few different ways that would all preserve searchability and sortability, as well as thread relationships. When choosing how you wish to proceed from among these options, there are four main considerations to bear in mind:
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