To Ask or Not to Ask? That is the E-Discovery Question

How to Request for Digital Evidence in the Modern Age of Discovery

By Allysia Edwards

The 2006 amendments to the Federal Rules of Civil Procedure (FRCP) transformed the discovery process by permitting the admittance of digital evidence. These amendments standardized the process surrounding email and corporate files. Not long after, the world of e-discovery significantly expanded to include everything from corporate chat applications to social media to the Internet of Things. Slack, MS Teams, Whatsapp, WeChat, Facebook Messenger, and Fitbits are just a few examples of discoverable tools for communication and geolocation evidence. The number of discoverable data types and collaboration apps will continuously grow due to the intentionally broad definition of ESI.¹

Given that modern digital evidence is likely to contain highly relevant information, legal teams should consider and request its production. That stated, requesting parties must ensure that their requests for production adhere to the guidelines set by the FRCP.

What Should I Include?

Per FRCP Rule 26(f)(3)(c), e-discovery requests must include general provisions. These provisions should describe details such as the request’s pertinence to the case and expectations for cooperation. Specifications regarding deadlines, the scope of discovery, privilege issues, inspection arrangements, and desired custodians should be included.²

Each item or category of items must be described with reasonable particularity. To fulfill this requirement, you can provide a clear list of keyword definitions and reasons supporting the relevancy of the requested data. Not providing this clarity can open arguments of proportionality that may result in the data getting dismissed.

As stated by Rule 34(b), requesting parties can also specify the form in which the production is completed. Knowing your preference in reviewing this data will be useful; however, the responding party may object if the form is burdensome or unnecessarily expensive. Specifying the data types and production methods will help your party overcome these arguments. It is worth noting that if no specifications are provided, the responding party reserves the right to choose between an electronic or hard-copy form.³

What Types of Data Can I Request?

Though we've all grown accustomed to email and documents as the most common data types in litigation, employees communicate in various ways. When working through the litigation hold and interview process, get familiar with these habits. Besides traditional email, data types that can also contain relevant evidence include:

• Corporate Chat Communications – Slack, Microsoft Teams, GroupMe, Crew, and many others
• Device Chat Communications – WhatsApp, Facebook Messenger, WeChat, Twitter DM, SMS, MMS and many others
• IoT – Fitbit, Fleet tracking devices, thermostats, smart watches etc.
• Social Media – Facebook, Twitter, TikTok, Instagram – all posts, comments and replies
• Financial Transactions – Bank/credit card statements, Point of Contact systems, Quickbooks etc.
• Geolocation – Cell tower data, automobile tracking devices, Cellular Provider stored data, smartphone and wearable devices
• User Activity – Registry Files, Event Logs, Google Takeout, corporate applications that log activities etc.

Suffice it to say, if the evidence is nonprivileged and proportional to the case, the sky’s the limit!

In What Kinds of Cases Have Nontraditional Data Types Appeared?

• In LaLonde v. LaLonde, Facebook pictures were used to evaluate the fitness of a parent during a child custody case.⁴
• In D. Case v. Tai Tarian, Darren Case was found guilty of gross misconduct after the court reviewed his WhatsApp messages. Through the app, Case secretly harassed and bullied his female coworker.⁵
• In Arkansas v. Bates, murder charges were dropped after evidence from an Amazon Echo instilled reasonable doubt in the judge.⁶
• In Bartis v. Biomet, Inc., Plaintiff Guan Hollins was ordered to produce all his Fitbit data after claiming to suffer from substantial injuries after the implantation of an artificial hip. The defendants, and manufacturers of the implant, intended to test the validity of the claim by determining if any running or jogging data was logged in the Fitbit.⁷

¹ Rana Shubham, “E-Discovery and The Federal Rules of Civil Procedure,” Copperpod Intellectual Property, Carthaginian Ventures Private Limited, May 4, 2021, https://www.copperpodip.com/post/e-discovery-and-the-federal-rules-of-civil-procedure.

² Allison O’Neill, “FRCP 26: A Straight-Forward Guide to eDiscovery Obligations,” Digital WarRoom, Oct. 29, 2019, https://www.digitalwarroom.com/blog/frcp-rule-26.

³Rana Shubham. “E-Discovery and The FRCP.”

⁴ “Facebook Evidence and Divorce,” Stage Law Firm, PC, Accessed June 25, 2021, https://www.stangelawfirm.com/articles/facebook-evidence-and-divorce/

⁵ Pinchas, “WhatsApp eDiscovery – Cases Where WhatsApp Chats Were Used as Evidence in Court,” Telemessage, Dec. 3, 2019, https://www.telemessage.com/whatsapp-ediscovery-cases-where-whatsapp-chats-was-used-as-evidence-in-court/#

⁶ Nicole Chavez, “Arkansas judge drops murder charge in Amazon Echo case,” CNN, Dec. 2, 2017, https://www.cnn.com/2017/11/30/us/amazon-echo-arkansas-murder-case-dismissed/index.html

⁷ Doug Austin, “Court Grants Defendants’ Motion to Compel Plaintiff’s Fitbit Data: eDiscovery Case Law,” eDiscovery Today, June 1, 2021, https://ediscoverytoday.com/2021/06/01/court-grants-defendants-motion-to-compel-plaintiffs-fitbit-data-ediscovery-case-law/

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