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, and fifth Part, we reviewed relevant case law. In this final Part, we will review key points from that case law and key takeaways from across the series.
Key Points from the Case Law
When considered together, the twelve cases we reviewed above suggest a few key points to remember regarding mobile devices in eDiscovery:
- First, the fact that mobile devices are a novel or challenging source is no excuse to skip them; if they’re relevant, preservation and production must be done (EEOC, Pradaxa)
- Second, just as with other source types, there will be potentially serious consequences for inadvertent losses from mobile devices, and there will be very serious consequences for intentional spoliation of mobile device data (Stinson, Hosch, Brown Jordan)
- Third, it may be possible to establish the prior existence of lost text messages using phone records from the relevant wireless carrier (Small, First Financial)
- Fourth, preservation delays for mobile devices entail a high risk of data loss due to the triple threats of automatic deletion of old messages, user deletion of messages, and frequent device replacements/upgrades (Small, NuVasive, Living Color)
- Fifth, smartphones and their data are not covered by the ECPA, SCA, or CFAA in ways that would prevent discovery of the information they contain (Garcia, Rajaee)
- Finally, possession, custody, and control may be construed broadly – depending on jurisdiction; consider personal devices as well as organization-issued (Ronnie Van Zant)
Key Takeaways from this Series
There are five key takeaways from our review of mobile devices in eDiscovery:
- Mobile devices – smartphones in particular – are now powerful, ubiquitous, and heavily-used devices that may contain a wide range of potentially-relevant materials and that are evolving in both hardware and software at a phenomenal pace
- Text messages have been the most important type of mobile device material so far, but the devices also potentially contain the same documents and emails you would find on a desktop or laptop computer, plus multimedia materials (photos, videos, audio), plus phone and/or internet materials (call logs, contacts, social media)
- Preservation of these materials requires instructing users to cease deletion, suspending relevant auto-delete functions (on devices and/or messaging servers), suspending device replacement/reissuance, and imaging needed devices before materials are lost
- Collection of these materials requires specialized tools, often requires capturing all of the data on the device (filtering to separate business and personal materials must be done later), and usually requires extra work to break the collected materials out into separate files for review and production
- Courts are now treating mobile devices in the same way as computers or other familiar sources; mobile devices being new to you as a source will not prevent sanctions
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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.