Smartphone Data And The Opinions Of The Courts

Best To Err On The Side Of Caution When Considering Additional Data Sources

With smartphones becoming the dominant form of communications both personal and corporate, it is no wonder that the rise in discovery requests including text messages, chat applications and other forms of communication has grown from one year to the next. There are many reasons to include, but don’t take our word for it…see what the courts are saying:

Proportionality or difficulty in collections and analysis are not great excuses to skip smartphone data; if the data is relevant, preservation and production are definitely going to have to happen.

In Re Pradaxa, (In Re Pradaxa, 2013 U.S. Dist. LEXIS 173674)

• The court was dismissive of defendant’s “very real privacy concerns raised when an employer demands access to an employee’s private cell phone and text messages.” Instead, the court asserted its authority to hold in contempt any employee who refused to turn over his/her personal mobile device to counsel:
• The defendants raised the issue that some employees use their personal cell phones on business and utilize the texting feature of those phones for business purposes yet balk at the request of litigation lawyers to examine these personal phones.
• The litigation hold and the requirement to produce relevant text messages, without question, applies to that space on employee’s cell phones dedicated to the business which is relevant to this litigation.
• Any employee who refuses to allow the auto delete feature for text messages turned off or to turn over his or her phone for the examination of the relevant space on that phone will be subject to a show cause order of this Court to appear personally in order to demonstrate why he or she should not be held in contempt of Court, subject to any remedy available to the Court for such contempt.

In E.E.O.C. V. Original Honeybaked Ham Of Georgia, Inc., No. 11-Cv-02560-MSK-MEH, 2012 WL 5430974 (D. Colo. Nov. 7, 2012)

• The Magistrate Judge allowed the discovery of not just email but social media communications and text messages as well. In discussing the novelty of social media and mobile device discovery, he wrote:
• 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.
• In Christou v. Beatport, LLC, No. 10-CV- 02912-RBJ-KMT, 2013 WL 248058 (D. Colo. Jan. 23, 2013), the defendant was ordered through a litigation hold to make a forensic image of his iPhone. He failed to do so, then later lost the phone. In response, the court granted the sanction that plaintiffs be permitted to introduce as evidence defendant’s failure to preserve text messages.

Treat Mobile Device Data Like All Other ESI, As Spoliation, Intentional Or Not, Is All Treated The Same Way As Anything Else.

Stinson V. City Of New York, No. 10 Civ. 4228 (S.D.N.Y. Jan. 2, 2016)

• This matter was a class action lawsuit, the Defendant was chastised and sanctioned for a variety of preservation and discovery failures, including some related to text messages from mobile devices. The Court wrote:
• The City similarly failed to make any effort to preserve text messages sent between NYPD personnel using department-issue smartphones . . . those devices were within the possession, custody, or control of the City, and were subject to the same preservation obligations as the City’s other ESI.
• Finding gross negligence on the part of the Defendant, the Court applied a permissive adverse inference instruction.

In Hosch V. BAE Systems Information Systems, Inc., No. 1:13-Cv-00825-AJT-TCB (E.D. Va. Apr. 24, 2014)

• the Plaintiff was ordered to turn over his iPhone and Blackberry for forensic examination because expected materials that were missing from his productions. When they were examined, it was determined that he had “wiped” them recently:
• On that device alone, plaintiff permanently deleted all text messages, call logs, email data, voicemails, internet history and bookmarks, pictures, network activity history, contacts, calendars, notes, applications, social media, and video stored on the device.  Plaintiff similarly deleted two years’ worth of information from his Blackberry device before producing it to defendant.
• The extent, significance, and apparent intentionality of the spoliation (of both mobile device data and other materials) led the Judge to apply terminating sanctions, dismissing his suit with prejudice.  The Plaintiff was also ordered to pay $55,755 in fees and $53,164.89 in costs.

In Some Instances, Deleted Data May Reside With The Wireless Carrier And May Need To Be Leveraged.

• In Living Color Enterprises, Inc. v. New Era Aquaculture, Ltd., No. 14-cv-62216-MARRA/MATHEWMAN (S.D. Fla. Mar. 22, 2016) a large number of relevant text messages were lost due to a combination of deletion by individuals unaware of the hold and automatic deletion of older messages, which had not been suspended. Most of the messages were recovered from an alternative source, though some could not be.  Applying the amended version of Rule 37(e), the Court concluded that there was no evidence of prejudice, since most messages had been recovered (and there was no evidence the lost ones were critical or materially different), and no evidence of intent to deprive, so no sanctions were granted.

The Timing Of Preservation Is A Moving Target, So The Fastest Methods Are Important As Spoliation Can Happen With Automatic Deletions, Device Upgrades Or User Deletion Activity.

• In Small v. Univ. Med. Center of S. Nevada, an eDiscovery special master recommended “death penalty” sanctions on the defendant for failing to preserve data stored on mobile devices.  The defendant failed to issue any litigation hold addressing BYOD devices despite the fact that several key employees confirmed that they used their personal mobile devices for work-related purposes.  As a result, defendant lost over two years of messages and other ESI that were potentially relevant to the litigation.  The special master declared the defendant’s conduct a “mockery of the orderly administration of justice,” and recommended that the court enter an order of default judgment.

Know How Your Local Court Are Treating Privacy And Proportionality As There Are Concerns That Can Outweigh The Traditional Approach To Discovery.

• A recent case out of the Southern District of Indiana offers an illustrative example of In Crabtree v. Angie’s List Inc., No. 1:16-cv-00877-SEB-MJD,2107 BL 28193 (S.D. Ind. Jan. 31, 2017), U.S. Magistrate Judge Mark J. Dinsmore denied defendant Angie’s List’s motion to compel production of data from employees’ personal cell phones.
• Angie’s List, facing an FLSA lawsuit from senior sales representatives who alleged they worked 10-to-12-hour days but were paid only for eight, sought GPS information from the sales representatives’ phones. That information, Angie’s List asserted, would show whether the plaintiffs had left for the day or taken unpaid breaks, even when signed into their work Salesforce accounts. The information could then create a more accurate depiction of their work hours. To support its motion to compel, Angie’s List marshaled several cases in which parties were able to obtain similar discovery into personal devices or GPS data.
• The court wasn’t convinced. Angie’s List was “overlooking a clear distinction,” the court explained: “Plaintiffs’ privacy interests.” The GPS data was particularly sensitive, the court explained, as it “would track Plaintiffs’ locations at every moment of the day for a year.” Further, similar information sought by the defendant was available from less expensive, less burdensome, and more convenient sources, from sources such as badge swipe data and work computer login data.
• Since Angie’s List had not demonstrated that GPS data would be more probative than other forms of data already in its possession, the court concluded, “the forensic examination of Plaintiffs' electronic devices is not proportional to the needs of the case because any benefit the data might provide is outweighed by Plaintiffs' significant privacy and confidentiality interests.”

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