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Commentary on Discovery of Mobile Device Data
August 6, 2025

ModeOne’s Response to the Sedona Conference’s “Commentary on Discovery of Mobile Device Data”

Earlier this summer, The Sedona Conference offered an opportunity to provide public comment on their “Commentary on Discovery of Mobile Device Data”—a welcome and timely resource for eDiscovery practitioners. We at ModeOne applaud the Sedona Conference Working Group 1 for tackling the complex issues around mobile device data in litigation and offering guidance for preserving, collecting, and producing this data. The draft Commentary reflected a thoughtful approach – one that resonates in many ways with ModeOne’s own experiences in mobile discovery.

During the public comment period we outlined key areas where ModeOne’s philosophy aligns with Sedona’s guidance and respectfully noted a few areas of difference based on our hands-on perspective as innovators in mobile data discovery. Our official response is below. Our goal is to contribute constructively to the dialogue, reinforcing our commitment to defensible and forward-thinking mobile data workflows.

Mobile data discovery doesn’t have to be “tricky,” as long as we apply sound principles and smart tools. Sedona has given us a great framework to discuss these topics. ModeOne is excited to be part of that conversation – on LinkedIn and beyond – in a collegial, constructive way. Together, let’s continue to improve how we handle mobile device data, ensuring that our methods are both effective and respectful of the individuals and information involved.

We encourage ongoing dialogue in the legal tech and eDiscovery community about these issues. Sedona’s Commentary is aptly described as guidance – it’s not a one-size-fits-all mandate, and it will surely evolve with input. We invite fellow practitioners, clients, and thought leaders to share your experiences: What approaches to mobile device discovery have worked for you? Where do you see gaps between traditional practice and what modern technology can do? By talking openly about what we’ve learned in the field, we can all contribute to better standards and solutions.

The following is our official response to the Sedona Conference:

Key Areas of Agreement

Both the Sedona Commentary and ModeOne emphasize foundational principles that should guide any mobile ESI project. Some notable alignments include:

Proportionality and Relevance: Sedona reiterates that discovery of mobile device data must meet standard Rule 26 requirements – it must be relevant, non-privileged, and proportional to the needs of the case [1]. Parties are not obligated to collect mobile data that lies beyond their possession or is not reasonably accessible due to undue burden or cost.[1] ModeOne strongly agrees. And in the case of mobile phones, we believe that proportionality must also reflect that many people conduct both company business and personal work on the same device, whether it is a BYOD or company-issued device. In fact, we have consistently advocated for a balanced approach that focuses on relevant data while respecting privacy. As we’ve noted in previous writings, companies conducting investigations or discovery “must find a balance between collecting relevant information and protecting private information irrelevant to an investigation. That balance must be proportional to the needs of the case and consider individual privacy interests.” [2] This proportional mindset is core to ModeOne’s service: our technology enables collecting only the data within scope, rather than sweeping up everything on a device. By targeting what truly matters, we reduce burden and cost while safeguarding custodians’ personal data – a principle Sedona underscores as well (e.g., considering whether the benefit of mobile data discovery outweighs the expense or intrusion). [3,4]

Early Cooperation and Planning: The Sedona Commentary “encourages cooperation among parties and their counsel with respect to each stage of the discovery process”. [5] This includes early dialogue about mobile data sources, preservation, and collection protocols. ModeOne fully supports this cooperative spirit. In our experience, engaging early – for example, discussing BYOD policies, the potential need for mobile collections, and agreeing on scope and methods at the Rule 26(f) conference – is critical to avoid disputes later. Sedona’s guidance on conducting custodian interviews and using questionnaires to identify relevant mobile data sources is another best practice we endorse. [6] Up-front collaboration and transparency set the stage for more efficient and frictionless mobile discovery. We strive to facilitate this by providing users with clear reporting and auditable workflows that counsel can use to openly discuss with opposing parties to build trust in the process.

Preservation and Defensible Collection Techniques: Both Sedona and ModeOne recognize that mobile data should be handled with the same care as other ESI when it comes to preservation. Sedona notes that preservation efforts exist on a continuum – from simple hold notices (low cost but higher risk) to full forensic collection (higher cost/burden but maximum protection of data) [7]. The Commentary does not mandate one-size-fits-all; instead it urges reasonable, good-faith efforts assessed case-by-case [7]. We concur. ModeOne’s workflow is designed to be forensically sound and defensible, while tailoring the effort to what the case demands. For example, our remote collection process generates a detailed chain-of-custody and hash verification for every item collected, ensuring integrity. We were pleased to see Sedona emphasize that whatever method is used, it should maintain evidence in an original state and protect against alteration [8]. ModeOne’s platform was built by litigation technology veterans with exactly this in mind – to automate mobile data collection in a defensible manner [9]. Both Sedona and ModeOne agree that reliable, validated tools and processes are paramount when dealing with smartphone evidence.

Privacy Considerations: Sedona dedicates guidance to privacy, urging parties to remain mindful of privacy rights and laws (HIPAA, GDPR, etc.) when collecting mobile data [10]. The Commentary even notes that in some situations a targeted collection focusing only on certain data may help address privacy concerns (though it cautions that such collections may lack some metadata) [11,12]. This ethos is directly in line with ModeOne’s approach. Our solution was expressly created to filter out personal content and collect only work-related or responsive data, thereby protecting the individual’s privacy. Sedona’s recognition that mobile devices often intermingle business and personal material – and that discovery must account for that – mirrors ModeOne’s philosophy. As one court aptly put it, unfocused imaging of a personal phone is likely “overly broad, unduly burdensome, and unduly intrusive” because of the trove of irrelevant personal information on the device [4]. We could not agree more. By leveraging technology to be selective, we uphold custodians’ privacy and satisfy discovery needs – these goals are not mutually exclusive.

Embracing Modern Collection Methods: We appreciate that the Sedona draft acknowledges emerging technologies for mobile collection. Sedona describes the traditional “remote collection” process (often a misnomer) where a forensic expert still ships a collection device (like a laptop) and guides the custodian through a USB connection via videoconference [13]. But importantly, Sedona notes that true remote collection over the Internet – with no physical tether – is now possible with new tools [14]. This is exactly the innovation ModeOne has brought to market. Our cloud-based SaaS solution enables same-day collections from custodians anywhere in the world without the need to ship hardware or send technicians on-site [15]. We’re glad to see Sedona validate these kinds of modern approaches. Both ModeOne and the Sedona authors recognize that leveraging technology (e.g. forensic cloud collections, automated workflows) can dramatically reduce the time and cost of mobile discovery when used appropriately [15]. It’s encouraging that the Commentary references these advancements – it signals to the industry that remote, targeted collection is not only viable, but in many cases preferable to the slow, invasive old ways.

Respectful Points of Disagreement or Emphasis

While we find much to agree with, there are a few areas where ModeOne’s perspective or emphasis differs slightly from the Sedona Commentary. We offer these observations with respect for the Sedona team’s work and with the understanding that reasonable minds may differ. We hope that WG1 takes our perspectives into consideration for the final publication.

Definition of “Mobile Device”: Sedona provides a baseline definition drawn from NIST but emphasizes devices that are portable, have a small form factor, operate wirelessly, have local storage, and a self-contained power source [16]. By this definition, smartphones and tablets clearly qualify (as they are primarily used for communication/content creation), whereas devices like smartwatches and pure IoT gadgets do not [17]. We agree that Sedona’s guidance should center on phones/tablets, since those are the most common sources of discoverable data.

  • ModeOne’s Perspective: However, we would note that the line can blur with modern tech. For example, a smartwatch may primarily be a “content consumption” device in Sedona’s view [17], but it can still contain text message notifications or health data that is or may be relevant in certain cases. IoT devices (think wearable health trackers or smart home devices) can generate data that becomes evidence. Sedona wisely acknowledges that its guidance might still be instructive if such devices are at issue [18] and that a separate IoT-focused commentary is forthcoming [19]. We think this section needs to emphasize more strongly that such technology needs to be considered for preservation and collection. We encourage practitioners not to ignore these emerging data sources. In practice, we’ve encountered matters where data from a synced smartwatch or a vehicle’s infotainment system played a role, and needed to be preserved and collected. Our take: Sedona’s definition is a good starting point, but flexibility and awareness of adjacent device types is important. As technology evolves, we should be ready to adjust what falls under “mobile device” in discovery, as collection techniques available for “mobile devices” may be appropriate for some IoT devices.

Forensic Imaging vs. Targeted Collection – Practicality and Preference: The Sedona draft does an excellent job describing a spectrum of collection methods, from full forensic images to logical exports to targeted manual captures [20,11]. Sedona correctly notes that a full forensic image of a phone provides the most comprehensive access to data (including deleted items, cache, etc.) and ensures no potential evidence is overlooked [21]. The Commentary points out scenarios where a full image “may be warranted” – for instance, if critical data exists only on the device (not in any cloud backup) or if recovering deleted fragments is important [22]. We don’t dispute that; ModeOne’s own forensic experts would agree that in certain investigations (fraud, spoliation allegations, etc.), a bit-for-bit image is justified.

  • ModeOne’s Perspective: However, we do feel the need to emphasize how rare those situations are in civil litigation. In the vast majority of cases we see, the relevant mobile data (texts, chats, emails, etc.) can be collected without pulling a full image of the phone. Sedona in fact acknowledges this, noting that logical extractions are commonly used when full extraction data isn’t needed and that this method minimizes cost and disruption to the user [23,24]. Our concern is that some readers of the Commentary might still default to “forensic image everything” out of caution. We respectfully suggest a stronger statement that forensic imaging should not be the default for every mobile device – it should be the exception applied only when truly necessary. Over-collection isn’t just theoretical; it has real impacts, and not just in added costs and burden in processing and review. We’ve seen overbroad imaging requests get pushback from courts due to privacy and proportionality issues. One court observed that imaging whole phones would likely sweep in a “disproportionate amount” of irrelevant personal info and denied that request [4]. ModeOne’s experience aligns with this: targeted collection (focusing on specific data types, date ranges, or custodians) is usually sufficient to meet discovery obligations and avoids the tremendous burden and intrusion of imaging a device wholesale. We appreciate that Sedona discusses proportionality in deciding on collection approach [3]; we simply think the commentary could go even further in encouraging litigants to favor scoped collections over full disk images whenever possible. This would echo Sedona’s own Principle 6 (“Avoiding unnecessary or unduly burdensome preservation/collection”) and reinforce modern proportionality case law.

“Non-Forensic” Manual Methods vs. Targeted Forensic Methods: Sedona draws a distinction between using forensic tools and doing “targeted, non-forensic manual collection” like screenshots or manually exporting individual files [11]. The draft rightly warns that while screenshots of text messages or similar ad hoc methods might be cheap and quick, they come at a cost: no metadata, potential authentication problems, and questions about completeness [11,25]. We couldn’t agree more – in fact, one of the reasons ModeOne was developed was to move beyond the era of crude screenshots.

  • ModeOne’s Perspective: We want to highlight, though, that targeted collection does not have to mean non-forensic. There is a middle path that Sedona might consider clarifying in revisions. ModeOne’s platform, for example, performs targeted collections (grabbing only specific relevant data like certain message threads or date ranges) using forensic software techniques. That means we preserve original metadata and guarantee data integrity, even though we aren’t taking a full image of the phone. The Commentary does mention that if a device/OS supports it, an API-based logical extraction can even pull only certain data types (e.g. just texts) [26] – this is exactly the sort of selective-yet-forensic approach we champion. We believe Sedona’s guidance could be read to include defensible collection practices that might use tools like ours, but the current draft mostly contrasts “forensic = comprehensive” with “targeted = manual/non-forensic.” In our view, technology has advanced to allow targeted forensic collection, and it’s worth making this nuance explicit. This gives practitioners the confidence that they can collect narrowly and still have defensible, metadata-rich results. We encourage Sedona to ensure that the final Commentary acknowledge solutions that combine precision with forensic defensibility and fill that gap between all-or-nothing collection methods.

Remote Collection Feasibility: Sedona’s text on remote collection (Section VI.B & footnotes) describes how traditionally a so-called “remote” collection often involves shipping a hardware kit and having a technician guide the process from afar [13]. The draft notes this is increasingly common and can save travel, but it’s still a hands-on process for the custodian.

  • ModeOne’s Perspective: We feel Sedona is perhaps a bit conservative in describing the state of the art here and that this will limit the options that lawyers and judges consider for their cases. As mentioned above, truly remote, over-the internet collection is not just theoretical – it’s here now, offered by several companies, and it works. Sedona does acknowledge emerging technologies enabling remote collection without a physical connection [14], but this future is in fact the present. ModeOne has executed remote collections for hundreds of smartphones concurrently, without needing to overnight laptops or dispatch personnel, as highlighted in a recent industry discussion [15]. We don’t just mean to toot our own horn, but to assure practitioners (and Sedona) that such methods are battle-tested and increasingly prevalent. The ability to collect from a custodian’s device anywhere in the world with just an app or web link is game-changing. It mitigates scheduling logistics, avoids courier delays, and is far more convenient for device owners. We suspect Sedona, being appropriately cautious and neutral, didn’t delve deeply into specific vendor capabilities. From our standpoint, however, any guidance on mobile discovery in 2025 should strongly encourage exploring remote collection options to save time and cost. It bears repeating that remote collection can dramatically compress timelines (we’ve seen what used to take weeks conclude in hours) and reduce the friction of mobile discovery, all of which improves overall collection capture. In sum, Sedona’s commentary is absolutely on the right track here – we would just amplify the message that practitioners should not assume that only in-person or ship-and-image approaches are necessary. The tools to do this entirely remotely (securely and defensibly) are available right now.

To be clear, these points of divergence are generally about degree and emphasis. We share Sedona’s overall conclusions we simply have real-world data and client feedback that lead us to push for inclusion of state-of-the-art methods in some areas (like favoring targeted remote workflows by default). We offer these insights in the spirit of collaboration and continuous improvement.

Moving Forward: ModeOne’s Commitment to Innovation & Dialogue

The release of Sedona’s Mobile Device Data Commentary is a significant milestone for our industry. It validates that mobile discovery is a nuanced field deserving special attention – something ModeOne has believed for years. We are heartened to see formal guidance catching up to the challenges and opportunities in this space.

ModeOne remains fully committed to innovation and defensibility in mobile data workflows. Every day we strive to refine our platform in line with best practices. Whether it’s ensuring our collections are air-tight from an evidentiary standpoint, or adding features to handle new data types and privacy requirements, we are continuously evolving. We take pride in having pioneered an approach that aligns with the Sedona principles – emphasizing cooperation, proportionality, and efficiency – while leveraging cutting-edge technology to meet those principles in practice.

Our team, led by veteran eDiscovery professionals, understands the stakes when dealing with smartphone data. That’s why features like detailed audit logs, custodian-controlled activation, and selective capture were baked into ModeOne from the start, to marry innovation with defensibility.

Thank you to The Sedona Conference for sparking this discussion. ModeOne looks forward to continuing to collaborate and innovate, so that the eDiscovery community can confidently tackle the ever-evolving landscape of mobile data.

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