The increasing importance of smartphone data in court proceedings and e-discovery is a marked trend in the eDiscovery Case Law Year in Review 2023 by the eDiscovery Assistant. In her annual review, CEO Kelly Twigger identifies issues and cases relevant to smartphone data and collection, including sanctions for failure to preserve smartphone data and the ineffectiveness of electronically stored information (ESI) protocols sans a smartphone collection strategy. Moreover, many of these cases show the difficulty in preserving smartphone data and how quickly administrators and custodians can lose track of devices and their data.
The Ineffectiveness of ESI Protocols Without Smartphone Collection Strategies
What happens if you stipulate or agree to an ESI protocol to not seek text messages from smartphones but learn later that’s where the best evidence lies to prove your claims or defenses? Nothing. A judge will most likely follow Latin Markets Brazil, LLC v. McArdle, 79 Misc.3d 1224(A) (NY Sup. Ct. 2023) and deny any requests to go after ESI barred by the agreement.
In Latin Markets Brazil, the plaintiff motioned to compel the discovery of text, social media, and LinkedIn messages from former employees more than one year after stipulating not to request text messages. The judge denied the request as the plaintiffs consented to a voluntary waiver of discoverable materials. Ouch!
When you stipulate limiting your access to ESI sources, be informed of the scope of sources that may harbor evidence and be mindful of what you agree to and don’t. Please don’t ignore the importance of smartphone data, because successful businesses and their employees use smartphones every day to conduct business. Courts enforce stipulations to ESI protocols as they do with any contract. Absent a showing of mistake, misrepresentation, fraud, or other affirmative defenses, you are most likely stuck with your stipulation.
You should always include the collection of smartphone data in an ESI protocol and add some detail to understand the meaning of texts and data. Describe how much context to include with responsive messages captured by search terms in text messaging systems like iMessage and Signal and other collaborative platforms such as Slack, Teams, and WhatsApp. You will want to see messages in the context of a dialogue with recipients.
Failure to Preserve Smartphone Data
With the growing use of smartphones as primary business communication tools and potential ESI sources in discovery, there is a corresponding growth in the failure to preserve smartphone data. Smartphone users often treat smartphone storage and apps as temporary, allowing or configuring the smartphone to automatically delete messages or intentionally deleting them to deprive an opponent of their use in court. Take the trial of Sam Bankman-Fried, former CEO of the defunct FTX.
Ephemeral messaging became central to the criminal trial of Bankman-Fried, who deliberately deleted incriminating online posts, messages, and other pertinent data from Signal, a text-messaging app, and from collaborative platforms, such as Twitter (now “X”) and Slack. During the trial, witnesses testified that Bankman-Fried ordered employees to use Signal and Slack to communicate and required them to set automatic deletion within 30 days. See U.S. v. Samual Bankman-Fried, 22-cr-0673 (US DC So. Dist. New York)(Feb. 1, 2023).
“In Freeman v. Giuliani, cv 21-3354 (US Dist. Ct DC, Aug. 30, 2023), Rudolph Giuliani failed to preserve emails, text messages, WhatsApp messages and Signal data. After multiple court orders to compel the production of discovery items, Giuliani failed to abide by the orders. The plaintiffs moved for sanctions under the Federal Rules of Civil Procedure, Rule 37(e), seeking a default judgment. The court granted it, finding spoliation and prejudice where Giuliani “intentionally and willfully ignored” his discovery obligations.
In many cases where parties failed to preserve smartphone data after their duty to preserve evidence arose, courts could not conclude the parties intentionally deprived their opponents of potentially relevant evidence. Rather than grant default judgments against such parties, courts grant adverse inference instructions against those who failed to preserve smartphone data. In such instances, the Court instructs factfinders that they may draw inference that the evidence destroyed was unfavorable to the party responsible for its spoliation.
In Hunters Capital, LLC v. City of Seattle, 2023 WL 184208 (WD Wash. 2023), plaintiffs sued the City of Seattle for damages to their property and businesses following the Capitol Hill Occupied Protests (CHOP) that arose after the killing of George Floyd in Minneapolis on June 19, 2020. The city failed to preserve data from custodians’ mobile devices, including those of the mayor, police chief, and fire department chief, destroying thousands of text messages. Unable to conclude that the city conspired to deprive the plaintiffs of potential evidence, the court granted adverse inference instructions against the city.
Like Hunters Capitol, the court in Skanska USA Civil Se, Inc. v. Bagelheads, Inc., 340 FRD 180 (ND Fla. 2021) imposed sanctions on Skanska, including an adverse inference and monetary sanctions, for its failure to preserve ESI from multiple custodians, resulting in the destruction or loss of cell phone data and the deletion of text messages.
Conclusion
Case law plays a critical role in e-discovery. Analyzing court rulings on e-discovery provides an understanding of how courts and judges interpret federal and state rules on handling ESI, including smartphone data. Don’t miss the 2023 eDiscovery Case Law Year in Review. If you want more information on adding smartphone data collection to an ESI protocol, follow ModeOne, a SaaS provider of smartphone collection technology for Android and Apple smartphones that protects custodians’ privacy while selectively collecting smartphone data relevant to litigation, a compliance initiative, or an investigation.