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Mobile Phones in Plaintiff eDiscovery

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Posted on April 1st, 2014

The Benefits and Challenges of Litigation Involving Smartphone Data

As electronic data has become one of the main sources of information in civil litigation, business computers, hard drives and corporate servers are often the primary source of relevant evidence. While these sources remain extremely important, there has also been a shift to mobile devices, such as smartphones and tablets.

Mobile devices present benefits as well as a few additional challenges to plaintiffs seeking electronic discovery. Regarding the benefits, many individual corporate defendants and their employees prove to be extremely candid on text messaging or emailing from mobile phones. Additionally, modern mobile phones have an astounding amount of available storage, and unless a person uses data erasing software or implements a factory reset, this data will likely remain on the phone. (And even if erasing software or resets are used, this will ordinarily leave metadata as to the dates that the erasing was done which can be used to implicate spoliation or other bad faith actions.)

On the other hand, mobile phone electronic discovery does have its challenges: the line may be blurred between personal devices and business devices, mobile phones are more easily “lost” or “destroyed” than hard drives or servers, and plaintiffs may have to request and receive the physical phone for a forensic examination.

Recent Case Law Regarding Mobile Phones and Text Messages in eDiscovery

Aggreko, LLC v. Koronis [1] (Defendant ordered to provide his iPhone password to plaintiff’s computer forensics expert; that expert was ordered to examine all mobile devices and smartphones capable of storing ESI.)

Calderon v. Corporacion Puertorrique A De Salud [2] (Text messages on mobile phone were deleted after the duty to preserve evidence arose. As the court noted that some texts were produced, but others during that time frame were not, it found an adverse inference instruction to be a proper sanction for spoliation.)

PTSI, Inc. v. Haley et al. [3] (Despite evidence that defendants deleted ESI on their smartphones after a protective order was entered, this Pennsylvania state court declined to enter sanctions. The court applied the proportionality test, and over plaintiff’s objections, found that the text deletion was “routine” to save storage space, the ESI could be produced from other sources, and the texts were not deleted in bad faith.) [This case is open to criticism regarding whether it is “routine” for parties to delete text messages “so as not to duly encumber their iPhones” due to the sheer amount of storage capacity on most phones.]

Garcia v. City of Laredo, Tex. [4] (Held that cell phones or smartphones are not “facilities” to which the Stored Communications Act (SCA) would apply. Therefore, a party’s storage on smartphones is outside the bounds of the SCA (and parties must therefore produce the electronic data to the requesting party)).

Need Help for Plaintiff eDiscovery Regarding Smartphones?

ILS stands ready to offer knowledgeable assistance to attorneys involved in class action lawsuits, MDLs and other litigation regarding discovery of mobile phones, Smartphones and more. Contact our plaintiff electronic discovery experts for information regarding computer forensics, discovery strategy planning, document review and the latest eDiscovery software for your case.

[1] Civil Action No. 13-13034-TSH: (D.Mass. December 19, 2013).

[2] 2014 WL 171599 (D. Puerto Rico January 16, 2014).

[3] 2013 PA Super 130, No. 684 WDA 2012.

[4] 2012 WL 6176479 (5th Cir. Dec. 12, 2012).

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