One More Case and Key Takeaways – Mobile Devices Update, Part 4

A multi-part update on the discovery challenges posed by the proliferation and popularity of smartphones and other mobile devices

In “Data on the Move,” we discussed new usage data, new evidence of evidence, and new technology news related to mobile devices in eDiscovery.  In “A Few Recent Cases,” we began our review of recent mobile device cases.  In “A Few More Recent Cases,” we continued that review, and in this Part, we conclude it.

As we noted in “A Few Recent Cases,” the frequency with which cases have had to address mobile device issues has steadily increased over the past few years.  From preservation obligations, to proportionality challenges, to privacy concerns, mobile devices have become a discovery battleground.  In this Part, we conclude our chronological review of a sampling of those recent cases and see what additional guidance can be gleaned from them.

Privacy in Santana v. MKA2 Enterprises

In the employment discrimination case of Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), the defendant sought production of “all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.”  The plaintiff objected on the ground that the request was “not proportional” and “unduly burdensome and invasive.”

In her analysis, the Magistrate Judge emphasized the incredible amount of information – much of it both irrelevant and private – that was implicated by a request for production of the devices themselves:

In any event, Plaintiff’s cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case.  Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case. . . .  Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition.  [emphasis added]

The Magistrate Judge then quotes from the Advisory Committee Notes to Federal Rule of Civil Procedure 34(a):

Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. . . .  Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.  [emphasis added]

Based on these principles, the Magistrate Judge found that the defendant’s discovery request was:

. . . overly broad, unduly burdensome and not proportional to the needs and issues of this case. . . .  In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s).  [emphasis added] 

Key Case Law Takeaways

Our original mobile devices case law review in 2017 suggested six key takeaways:

1. 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)
2. 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)
3. It may be possible to establish the prior existence of lost text messages using phone records from the relevant wireless carrier (Small, First Financial)
4. 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)
5. 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)
6. Possession, custody, and control may be construed broadly – depending on jurisdiction; consider personal devices as well as organization-issued (Ronnie Van Zant)

Our new case law review reinforces two of these takeaways and gives us two more.  Two of our newer cases align closely with the second and fourth takeaways on this list.  Shaffer and Shawe both document mobile device data preservation failures leading to significant sanctions.  The remaining cases give us these two additional takeaways:

• First, Gould demonstrates that the privilege against self-incrimination will not protect you from having to produce mobile device data that contains evidence of your wrongdoing; the materials on mobile devices are documents rather than testimony

• Second and more significantly, courts are taking proportionality challenges to mobile device discovery requests seriously, and overbroad requests – such as those for the devices themselves rather than just relevant contents – are being denied on privacy grounds; Hespe, Ramos, Henson, and Santana all deny overboard requests because of privacy, while First Niagara grants a request for an appropriately limited search

Upcoming in this Series

Next, in the final Part of this short Update Series, we will discuss the new BYOD guidance from The Sedona Conference.