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Smart Discovery Practices Required for Addressing Smartphone Discovery

 “Today, Apple is going to reinvent the phone.” Steve Jobs, January 9, 2007.

A little over a decade ago, Apple Inc.’s chief executive officer, Steve Jobs, announced the upcoming release of a “revolutionary” development: the iPhone. The iPhone would combine telephone functionality and “Breakthrough Internet Communications” with a wide, touch-screen interface. All of which would provide users with enhanced feasibility for communication and entertainment. Users would now have access to email, text messages, music, audio books, movies, maps, a camera, and a photo management application, all within the same device.

While developments in phone technology had been steadily advancing up to that point (remember the Blackberry?), nothing quite captured all of these features with the facility of the iPhone. When it was released for sale on June 29, 2007, the iPhone completely changed what users could do with a cell phone. In addition, the iPhone unleashed a new wave of applications developers who sought to enhance and expand on the initial set of iPhone offerings. Knockoff versions of the iPhone also began to appear, offering cheaper equivalents to the Apple smartphone.

Smartphones Transform eDiscovery

These phenomena have combined to exponentially increase the nature and scope of electronic information potentially subject to discovery. Consider the following.

In 2007, clients would typically produce emails, unstructured data, database information, and pictures in discovery. Social networking existed, but was a marginal source of discoverable information. At that time, social networking was generally limited to Myspace, YouTube, and a few other providers. Facebook was only offered to the general public beginning in 2006 and Twitter was just emerging in the nascent mobile space vertical.

Similarly, communications by text message and instant messaging services were still at the periphery of discovery in 2007. Even though people were frequently communicating through these services (particularly by text message), these sources of information were often not sought after or produced in discovery.

Contrast the discovery environment from 2007 with that in 2017. There is now a seemingly unending source of communications and other content, which became ubiquitous in response to the iPhone or related smartphone and mobile device innovations. Such information includes:

  • Email
  • Messages shared or posted through messaging applications
  • Messages and other content shared or posted on social media sites
  • A variety of global positioning service (GPS) location data
  • Fitness and health tracking information
  • Enterprise and personal cloud applications
  • Vast numbers of videos and photos, along with advanced editing applications
  • Transportation applications
  • Financial transactions and data

A lot of this information may be irrelevant to an underlying dispute or (in the case of relevant data such as email) can be obtained from other locations. And yet, massive amounts of smartphone data may still need to be preserved, reviewed, and then produced in discovery. With the benefit of hindsight, it’s obvious the iPhone did more than just “reinvent the phone.” It “reinvented” eDiscovery.

Addressing Smartphone Discovery

With smartphone data often driving the discovery process, organizations and their counsel should be increasingly savvy in how they address it in discovery. The following are three steps that can be taken in this regard.

  1. Take Immediate Preservation Steps

Litigants and lawyers should always take immediate action to preserve relevant smartphone information when litigation is reasonably anticipated. Smartphone data is often dynamic and easily subject to modification or destruction, either by the user, third party providers, or by the technology itself. This is particularly the case with messaging applications like Whatsapp and Confide, which by design or through user settings may have little if any retention functionality for user content. As a result, counsel should act quickly to issue litigation holds that clarify what needs to be preserved.

     2. Conduct a Reasonable Inquiry

Counsel and clients must also understand there are any number of sources of potentially discoverable information beyond email and unstructured data. While clients need not undertake disproportionate efforts to uncover every last piece of relevant information, they must still make a “reasonable inquiry.” This entails interrogating custodians and data sources for discoverable information, which includes data that may be found on smartphones.

    3. Avoid Over-Collection

After conducting a reasonable inquiry, follow up efforts must then be made to isolate relevant information for collection. That does not mean imaging every custodian smartphone or the entire contents of a phone. This leads to needless preservation and collection of irrelevant data and relevant information such as email that has already been retrieved from more accessible locations.

Clients should instead collect only relevant data that is unique to smartphones. Given the technical challenges often associated with this process, eDiscovery counsel or other experts should be engaged to ensure this is properly accomplished.

Taking these steps will do much to help attorneys and organizations address the challenges of smartphone discovery.

Philip Favro
Philip Favro
Philip Favro acts as a trusted advisor to organizations and law firms on issues surrounding discovery and information governance. Phil provides guidance on data preservation practices, litigation holds, data collection strategies, and ESI search methodologies. In addition, he offers direction to organizations on records retention policies and the need to manage dynamic sources of information found on smartphones, cloud applications, and social networks. Phil is available to serve as a special master on issues related to electronic discovery. Phil is a nationally recognized thought leader and legal scholar on issues relating to the discovery process. His articles have been published in leading industry publications and academic journals and he is frequently in demand as a speaker for eDiscovery education programs. Phil is a member of the Utah and California bars. He actively contributes to Working Group 1 of The Sedona Conference where he leads drafting teams and serves as the Steering Committee project manager. Prior to joining Driven, Phil practiced law in Northern California where he advised a variety of clients regarding business disputes and complex discovery issues. He also served as a Judge Pro Tempore for the Santa Clara County Superior Court based in Santa Clara, California.