Why Mobile Data Matters in Litigation and Investigations

Extract from article by ACEDS by George Socha & Martha Louks

Mobile devices, especially smartphones, have become home to all manner of data about what we do. That means they should be seems as a key potential source of potentially relevant electronically stored information.

Smartphones have become ubiquitous. We step through life with our mobile devices ever at our sides. According to a recent report from British communications regulator Ofcom, 71% of adults in the UK say they never turn their smartphones off and 78% say they could not live without them.[1]

The data on smartphones – personal and business – rapidly is becoming comprehensive. Smartphones can track who we communicate with, when, how, and about what. They can record where we have been, how we got there, how long we stayed there.  As our smartphones travel with us, they capture a breadth and depth of information about us that can be stunning. They are our telephones and our communicators (think email, text messages, Facebook posts, WhatsApp, and Slack, just to mention a few platforms we use through our smartphones).  They are our cameras, our navigations systems. They are home to our contacts, our boarding passes, our reminder lists, the performance histories of our stocks.

Mobile data – the data available from and via smartphones and other mobile devices – is discoverable: to begin with. There is no doubt whatever about that. Rule 34 of the Federal Rules of Civil Procedure, for example, is clear on that point. FRCP 34(a)(1)(A) states in part: “A party may serve on any other party a request … to produce and permit the requesting party or its representative to inspect, copy, text, or sample the following items in the responding party’s possession, custody, or control: … Any designated documents or electronically stored information … stored in any medium from which information can be obtained directly….”

We use our smartphones to personal ends, of course, but also for business reasons. Bring Your Own Device (BYOD) programs have become commonplace. According to one recent survey, 83% of responding enterprises rely entirely or in part on BYOD programs[2].

Data from personal mobile devices used as part of a BYOD program can be discoverable. Notably, in May 2018 a leading commentator on e-discovery policy, The Sedona Conference, published a set of five principles related to the use of BYOD programs.[3] Principle 3 recognizes that mobile data can be discoverable. It states: “Employee-owned devices that contain unique, relevant ESI should be considered sources for discovery.” At the same time, Principle 5 tries to set some boundaries: “Employee-owned devices that do not contain unique, relevant ESI need not be considered sources for discovery.”

Read the complete article at Hold My Phone: Part 1 – Preservation and Collection of Mobile Device Data

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[1] A decade of digital dependency (Aug. 2, 2018), https://www.ofcom.org.uk/about-ofcom/latest/features-and-news/decade-of-digital-dependency

[2] Eric McCarty, The State of Enterprise Mobility in 2018: Five Key Trends (June 6, 2018), https://insights.samsung.com/2018/06/06/the-state-of-enterprise-mobility-in-2018-five-key-trends/. Seventeen of enterprises provide mobile phone to all employees (no BYOD there); 31% provide no mobile devices to their employees, relying entirely on employees to use their own devices; and 52% use hybrid approaches.

[3] For detailed discussion on BYOD legal issues, see The Sedona Conference Commentary on BYOD: Principles and Guidance for Developing Policies and Meeting Discovery Obligations, 19 Sedona Conf. J. 495 (2018).

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