In our last post, we discussed considerations for discovery of evidence from mobile devices. In addition to those considerations, case law precedent is a significant consideration that drives how mobile device discovery should be conducted.
Court rulings regarding privacy, relevancy, proportionality, and sanctions for spoliation of mobile device evidence influence the scope and best practices for mobile device discovery. With that in mind, here are ten recent case law rulings involving mobile device discovery.
Fourth Amendment and Data Privacy
Mobile devices are a routine source of evidence in criminal cases and law enforcement agencies are continuing to battle with criminal defendants over privacy protection. Here are two recent case law rulings that address privacy rights under the Fourth Amendment:
Alasaad, et al. v. Mayorkas, et al.: The First Circuit Court of Appeals found that “the district court erroneously narrowed the scope of permissible searches of such equipment at the border” when it found constitutional violations resulting from border searches of electronic devices without warrants, rejecting the plaintiff’s citation of Riley v. California (a 2014 SCOTUS decision that disallowed warrantless searches of mobile devices).
U.S. v. Sam: The Court ruled that the FBI violated the Fourth Amendment when it viewed the lock screen of the defendant’s phone (which revealed the name “STREEZY”) without a warrant.
Relevancy, Proportionality and Forensic Examination
Parties continue to battle over the relevancy vs. proportionality balance of mobile device data, especially when parties are requesting inspection or forensic examination of mobile devices. Here are four recent case law rulings that address relevancy and proportionality of mobile device discovery, three of which involve direct or forensic examination of mobile devices:
Sandoz, Inc. v. United Therapeutics Corp.: The Court granted the relief requested by the defendant compelling the plaintiff to produce contextual text messages in addition to those responsive to search terms.
In Re Cooley, Relator: The Texas Fifth District Court of Appeals in the context of a writ of mandamus refused to order the actual device) that took photos of plaintiff’s injury to be made available for inspection, finding that the defendant failed to make an evidentiary showing that the electronic files produced lacked relevant metadata.
Measured Wealth Private Client Grp. v. Foster, et al.: The Court granted the plaintiff’s motion to compel forensic examination of an individual defendant’s mobile phone, finding that “Defendant appears to have been obstructionist with regard to her production of text messages and iMessages during the discovery process.”
Johns v. Chemtech Services: The Court denied the defendant’s request for a Court-compelled forensic examination of the plaintiff’s cell phone, not finding forensic examination of plaintiff’s cell phone as “proportional to the needs of the case under Rule 26(b)(1)”.
Spoliation and Sanctions
As is the case with any ESI source, courts consistently continue to hold parties accountable for failing to preserve data from mobile devices. Here are four recent case law rulings involving sanction requests for spoliation of data from mobile devices:
In Re Skanska USA Civil Southeast Inc., et al.: The Court, calling the defendants’ failure to preserve cell phone data for five custodians (and spoliation of other mobile device data) a “text book case of spoliation,” issued adverse inference instruction and monetary sanctions against the defendant.
In re Gold King Mine Release in San Juan Cty., Col., on Aug. 5, 2015: The Court sanctioned the federal party defendants for failing to preserve mobile device data for two key custodians, even though the EPA had issued a litigation hold six days after the blowout of the Gold King Mine, “sought to preserve texts through this process on approximately 500 cell phones” and placed 1,000 custodians on litigation hold.
Doe v. Purdue, et al.: When the plaintiff redid a production of Snapchat data (because the first one had expired links) and the second one revealed 11 videos and images had been deleted, the Court sanctioned the plaintiff by requiring him to pay defendants’ attorneys’ fees and costs associated with the dispute and allowing the defendants to submit a jury instruction regarding the deleted data.
Rossbach v. Montefiore Med. Ctr.: Here, the plaintiff received terminating sanctions for fabricating a text exchange that included several discrepancies, including using a version of the “heart eyes” emoji that couldn’t possibly be displayed on an iPhone 5 using iOS version 10.
It’s important to understand trends associated with case law rulings involving mobile device discovery to keep best practices current. The ubiquity of mobile devices will continue to increase the frequency of mobile devices involved as evidence in litigation, which will lead to more case law involving mobile device discovery disputes. Be prepared for it!
Next time, we will look at considerations for use of chat/collaboration apps in the workplace.
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