Mobile Devices

Today, the average smartphone “has more computing power than all of NASA when it put the first men on the moon in 1969.” The vast majority of your key players and other custodians will have one in their pocket. But what about business use?  As of 2015, 80% of people were using texting for business purposes.  Another survey found that, in 42% of financial services organizations, employees had requested authorization to use text messaging for business – double the 21% reported in 2016.  The same survey found that 83% of organizations now allow employees to use their personal devices for business communication. As a result, mobile devices are turning up frequently as relevant sources in litigation. Learn more about these trends and how they are growing into areas of concern.

Smartphones are far and away the most used type of mobile device (57% of all digital minutes, compared to just 9% for tablets).  Because of their importance, most organizations want their employees to use them for work, and employees typically want to be able to work on them.  A majority of companies now have or are planning to adopt BYOD-friendly policies, and many organizations are planning to start requiring employees to bring their own device.  As a result, a BYOD organization will have a veritable cornucopia of different smartphones in use by its employees.

Because of the huge diversity in smartphone and tablet hardware and software, collecting from these sources poses special challenges and requires special tools.  These tools are collection kits akin to those used for forensic acquisitions from traditional computer sources, but they feature connection options for all of the common mobile standards and more specialized software for interfacing with the wide range of potential data formats, file systems, etc. When executing mobile device acquisitions, there are a range of options similar to those available when conducting traditional computer drive acquisitions.  Read on to learn more about the three types of acquisitions and the additional challenges presented by mobile device data after its acquisition.

In this case law survey, we will briefly review a dozen cases from across the past five years that have touched on mobile device discovery issues.  We will review them in chronological order: E.E.O.C. v. Original Honeybaked Ham Co. of Georgia, Inc., Garcia v. City of Laredo, Pradaxa Products Liability Litigation, Hosch v. BAE Systems Information Solutions, Inc., Small v. Univ. Med. Center of S. Nevada, and Rajaee v. Design Tech Homes.

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: Stinson v. City of New York, No. 10 Civ. 4228 (S.D.N.Y. Jan. 2, 2016), NuVasive, Inc. v. Madsen Med. Inc., No. 13cv2077 BTM(RBB) (S.D. Cal. Jan. 26, 2016), First Financial Security., Inc. v. Lee, No. 14-1843 (D. Minn. Mar. 8, 2016), Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN (S.D. Fla. Mar. 22, 2016), Brown Jordan Int’l, Inc. v. Carmicle, Nos. 0:14-CV-60629, 0:14-CV-61415 (S.D. Fla. Mar. 2, 2016), and Ronnie Van Zant, Inc. v. Pyle, No. 17 Civ. 3360 (RWS) (S.D.N.Y. Aug. 28, 2017).

When considered together, the twelve cases we reviewed suggest a few key points to remember regarding mobile devices in eDiscovery: the fact that mobile devices are a novel or challenging source is no excuse to skip them; 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; and, it may be possible to establish the prior existence of lost text messages using phone records from the relevant wireless carrier. Read on to review the three other main key points from the case law as well as the key takeaways from our review of mobile devices in eDiscovery.

Almost two years ago, we discussed the phenomenal power and surging popularity of mobile devices – primarily smartphones – and the implications they have for discovery. Since then, the importance of smartphones and other mobile devices as discovery sources has only grown, with new news, new cases, and new guidance all becoming available.

Over the past few years, the frequency with which cases have had to address mobile device issues has steadily increased. From preservation obligations, to proportionality challenges, to privacy concerns, mobile devices have become a discovery battleground. In this Part, and in Parts to come, we will review an assortment of these cases, in chronological order, to see what additional guidance can be gleaned from them.

As we noted in the last Part, 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 continue our chronological review of an assortment of those cases to see what additional guidance can be gleaned from them.

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.

Last year, to help practitioners navigate the vagaries, The Sedona Conference released a guidance document on BYOD issues: “The Sedona Conference Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations.” This document attempts to clearly articulate the issues that need to be considered, including factors for assessing each issue, downstream discovery implications, and legal standards that may apply.

Mobile devices have become frequent sources of relevant ESI in litigation. 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 – particularly the production of mobile device messages.