A multi-part update on the discovery challenges posed by the proliferation and popularity of smartphones and other mobile devices
In “Data on the Move,” we discussed new usage data, new evidence of evidence, and new technology news related to mobile devices in eDiscovery. In “A Few Recent Cases,” we began our review of recent mobile device cases. In “A Few More Recent Cases,” we continued that review, and in this Part, we conclude it.
As we noted in “A Few Recent Cases,” the frequency with which cases have had to address mobile device issues has steadily increased over the past few years. From preservation obligations, to proportionality challenges, to privacy concerns, mobile devices have become a discovery battleground. In this Part, we conclude our chronological review of a sampling of those recent cases and see what additional guidance can be gleaned from them.
In the employment discrimination case of Santana v. MKA2 Enterprises, Inc., No. 18-2094-DDC-TJJ (D. Kan. Jan. 8, 2019), the defendant sought production of “all cellular telephones used by you from the date your employment with Defendant started to the present for purposes of inspection and copying.” The plaintiff objected on the ground that the request was “not proportional” and “unduly burdensome and invasive.”
In her analysis, the Magistrate Judge emphasized the incredible amount of information – much of it both irrelevant and private – that was implicated by a request for production of the devices themselves:
In any event, Plaintiff’s cell phone likely contains a tremendous volume of information, including possibly text messages, email messages, phone logs, and photographs that are not at all relevant to the claims or defenses in this case. Even many or most of those texts and messages between Plaintiff and his co-workers or former co-workers may have no relevance to the claims and defenses in this case. . . . Any relevant information concerning phone calls Plaintiff made to or received from co-workers and former co-workers could be more easily and less invasively obtained by asking Plaintiff about the calls during his deposition. [emphasis added]
The Magistrate Judge then quotes from the Advisory Committee Notes to Federal Rule of Civil Procedure 34(a):
Inspection or testing of certain types of electronically stored information or of a responding party’s electronic information system may raise issues of confidentiality or privacy. . . . Courts should guard against undue intrusiveness resulting from inspecting or testing such systems. [emphasis added]
Based on these principles, the Magistrate Judge found that the defendant’s discovery request was:
. . . overly broad, unduly burdensome and not proportional to the needs and issues of this case. . . . In accordance with Rule 34(a), the Court must guard against the undue intrusiveness that would result from the requested inspection and copying of Plaintiff’s cell phone(s). [emphasis added]
Our original mobile devices case law review in 2017 suggested six key takeaways:
Our new case law review reinforces two of these takeaways and gives us two more. Two of our newer cases align closely with the second and fourth takeaways on this list. Shaffer and Shawe both document mobile device data preservation failures leading to significant sanctions. The remaining cases give us these two additional takeaways:
Upcoming in this Series
Next, in the final Part of this short Update Series, we will discuss the new BYOD guidance from The Sedona Conference.