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Posted on: March 24, 2016

in Blog

5 Cases that Highlight the Challenges of Mobile Device Preservation

This post summarizes five recent judicial experiences littered with examples of litigants grappling with issues of mobile device preservation.

As mobile device usage and capabilities increase, the importance of the ever-slimmer gadgets as potential sources of electronically stored information (ESI) becomes undeniable. The more we rely on these accessories as vehicles for business communications and entertainment, the more data we create and consume. For every additional bit and byte that is born in the ether, there is a heightened chance that the information will become fodder for eDiscovery.

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Recent judicial experiences are littered with examples of litigants grappling with issues of mobile device preservation. 

EEOC v. The Original Honey Baked Ham Company

For example, while allowing discovery of class members’ social media, text messages, and email in EEOC v. The Original Honey Baked Ham Company of Georgia Inc. (Feb. 27, 2013), Magistrate Judge Michael E. Hegarty opined that “If there are documents in this folder that contain information that is relevant or may lead to the discovery of admissible evidence relating to this lawsuit, the presumption is that it should be produced. The fact that it exists in cyberspace on an electronic device is a logistical and, perhaps, financial problem, but not a circumstance that removes the information from accessibility by a party opponent in litigation.” It is clear that arguments around inaccessibility, burden, and even privacy will fall on deaf ears when it comes to preservation and collection of relevant ESI no matter where it resides. 

Garcia v. City of Laredo

Garcia v. City of Laredo (Dec. 12, 2012) witnessed The United States Court of Appeals for the Fifth Circuit confirm the Texas district court’s opinion that mobile phones do not fall under the protections afforded by the Stored Communications Act (SCA). The SCA sought to extend 4th Amendment rights to information carriers such as Internet Service Providers to protect them against unreasonable search and seizure. Plaintiff unsuccessfully argued that the City of Laredo violated the SCA by accessing information stored on her mobile phone without her permission. Circuit Judge W. Eugene Davis concluded that a mobile phone is not a facility through which an electronic communication service is provided and that only “electronic storage” that is provided by an electronic communication service is within the scope of the SCA. In other words, data stored on the physical device itself is not protected, but data hosted by or in transit through a communication provider such as Verizon or AT&T falls under the SCA’s scope.

Christou v. Beatport LLC

Case law about spoliation of workstations, email, and accounting data is already well documented, but decisions around mobile device preservation are starting to take center stage. In the matter of Christou v. Beatport, LLC (D. Colo. Jan. 23, 2013), Defendant failed to preserve text messages on an iPhone that allegedly was lost or stolen approximately 8 months after preservation letters were exchanged. Defendant maintained that sanctions were not warranted because no relevant text messages existed on the device, a point which Plaintiff dismissed because there was no indication “… that defense counsel reviewed [Defendant’s] text messages and determined that they contained nothing of relevance.” Although Judge R. Brooke Jackson did not grant an adverse jury instruction, spoliation sanctions were warranted and Plaintiffs would be allowed to produce the legal hold letter at trial and argue “whatever inference they hope the jury will draw.”

Calderon v. Corporacion Puertorrique a de Salud

More recently, Judge Francisco A. Besosa delivered an adverse inference instruction in the matter of Calderon v. Corporacion Puertorrique a de Salud (D.P.R. Jan. 16, 2014) for the “conscious abandonment of potentially useful evidence.” The evidence in question in this harassment and discrimination case was a series of SMS messages and emails between the plaintiff and the alleged harasser. Defendants argued that Plaintiff’s admission that some of the communications had been deleted, and some preserved, warranted case dismissal. Defendants were able to preserve and produce communications among the parties that Plaintiffs should have preserved and produced, but failed to. Although Judge Besosa concluded that spoliation by Plaintiffs was not “particularly egregious or extreme,” he did note that after spoliation is determined, “…the Court enjoys considerable discretion over whether to sanction the offending party.”

Nuvasive, Inc. v. Madsen Med. Inc.

Finally, as we witnessed in Nuvasive, Inc. v. Madsen Med. Inc. (S.D. Cal. Jan. 26, 2016), even the recent updates to FRCP 37(e) that require proof of the “intent to deprive” a party of information in order to levy sanctions in the form of an adverse inference or, in extreme circumstances, case dismissal cannot shield an accused party of negative consequences for failure to preserve. The court granted Plaintiff’s motion to reconsider a prior adverse inference instruction for failure to preserve and produce text message data, a decision the moving party claimed should be vacated due to the higher burden of proof required by the updated 37(e). Brushing aside arguments about whether the new rule can justly be applied to a previous instruction, the court decided to allow counsel on both sides to present the jury with further information about the missing data itself so that they, the jury, “may consider such evidence along with all other evidence in the case in making its decision.”

These cases alone justify the creation of a mobile device management policy and incident response plan well in advance of litigation or regulatory events. Together, they establish that electronic communications of all kinds are considered accessible by the courts and will not be afforded certain expectations of privacy. Prior to enacting a mobile device management policy, an organization must know exactly what devices it has, or will have, in order to better understand the hurdles unique to each manufacturer or operating system. 

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