Going Mobile: Recent Mobile Device Case Law Trends, Part 1

In our last post, we discussed some of the ways that investigators are using mobile devices in criminal investigations, as well as privacy considerations associated with mobile device investigations.

One of the best indicators of trends related to mobile device discovery is case law rulings. Case law rulings tell us what the courts are expecting from us regarding how and when electronically stored information (ESI) from mobile devices should be preserved and produced – as well as what the courts will do when we don’t meet those expectations!

Mobile device data has become a common source of ESI in cases, which means they are often a factor in judicial decisions. In eDiscovery Assistant’s database of eDiscovery case law rulings, there are 247 opinions related to mobile device discovery – just in 2023!

Most of those disputes fall into two categories: 1) relevance and accessibility of mobile device data (including whether forensic examination of mobile devices is warranted, and 2) sanctions related to the preservation and production of mobile device data (including fabrication of evidence). In this post, we will discuss eight cases related to relevance and accessibility disputes; in part two, we will discuss nine cases related to sanctions regarding mobile device data.

Recent Cases Involving Relevance and Accessibility of Mobile Device Data

In recent years, we’ve seen a steady rise in the number of disputes related to the relevance and accessibility of mobile device data. Many of these relate to whether evidence from mobile devices is relevant and proportional – including whether the forensic collection of evidence from mobile devices is relevant and proportional. Here are eight cases related to these disputes:

In re Pork Antitrust Litigation: This case was particularly instructive in that the plaintiffs took a “belt and suspenders” approach to requesting mobile device discovery. They requested it from the defendant who objected that it did not have possession, custody, or control of the custodians’ personal cell phone data. The Court agreed with the defendant, finding “an employer does not legally control personal text messages despite a BYOD policy when the policy does not assert employer ownership over the texts and the employer cannot legally demand access to the texts.” However, the plaintiffs also subpoenaed the custodians directly for the information and the Court granted that request. So, the plaintiffs were able to get the information they sought in a different way.

Sandoz, Inc. v. United Therapeutics Corp.: The key issue in this case was whether one of the plaintiffs had to produce contextual text messages within a conversation in addition to the text messages that had a search term hit. The Special Master assigned to the case ruled that the plaintiff “shall produce context-related text messages for each of the messages…including the preceding text message or responding text message, if they exist”. It’s important to establish up front the handling of text messages that provide context to the discussion in discovery, even when those text messages don’t contain search terms.

Latin Markets Brazil, LLC v. McArdle, et al.: This case shows the fallacy of entering into a stipulation to exclude certain evidence from discovery before you fully understand its significance. Here, the Court denied plaintiff’s request for texts, social media, and LinkedIn messages due to the fact that the parties entered into an ESI stipulation that prohibited disclosure of “[v]oicemail, text messages, personal phones or tablets and instant messages”.

In Re Cooley, Relator: Here, the Texas Fifth District Court of Appeals conditionally granted the writ of mandamus from the relator seeking relief from a trial court order to make device(s) that took photos of her injury available for inspection, stating “[m]ere skepticism or bare allegations that the responding party has failed to comply with its discovery duties are not sufficient to warrant an order requiring direct access to an opposing party’s electronic device”. This case illustrates that a request to examine a mobile device should be based on demonstrable  proof that evidence has not been produced.

Roque v. Swezy: This case illustrates that the timing to ask for a forensic examination of a mobile device is key. Here, the Third District Court of Appeal of Florida quashed the trial court’s order for a forensic image of the plaintiff’s cellphone (including deleted data) after – astonishingly – the trial court ordered that forensic image to be created, even though discovery had just commenced, and the defendant had made no showing that the plaintiff had deleted any data. There’s a time and a place for forensic inspection.

Measured Wealth Private Client Grp. v. Foster, et al.: This case illustrates an example of when the time and place for forensic inspection is established. Here, the Court, noting that “Defendant appears to have been obstructionist with regard to her production of text messages and iMessages during the discovery process”, ordered a forensic examination for her device after ordering a mobile phone forensic examination for a different individual defendant in the case two months earlier.

Handley v. Werner Enterprises, Inc., et al.: This case shows that sometimes, simply getting into the mobile device can be a challenge. Here, the Court granted the defendants’ motion to compel the plaintiff to provide a correct PIN code to her cell phone, after providing several incorrect PIN numbers previously.

Ainstein AI, Inc. v. ADAC Plastics, Inc.: This case illustrates that, sometimes, courts still treat mobile device data differently from traditional data sources. Here, the Court granted plaintiff’s emergency motion and ordered forensic imaging for computers and storage devices used by key defendant personnel, but not for their personal cell phones, finding the request to image the personal cell phones “overly broad, unduly burdensome, and unduly intrusive given the disproportionate amount of personal information totally irrelevant to this lawsuit that is likely on these individuals’ personal cell phones”.

Lessons Learned

Discovery of mobile device data isn’t always straightforward. In the first case, the requesting party’s approach to subpoena the custodians directly enabled them to still discover the data when the Court found that the employer did not have control over the employee’s device. In the second case, the requesting party realized that contextual text messages are important evidence as well – not just the messages with text hits. In both instances, the parties did a great job of planning and executing their discovery strategy regarding mobile device data.

The third case illustrates the perils of agreeing to exclude certain ESI sources without understanding their significance to the case. Parties in many cases have historically agreed not to pursue discovery of mobile devices; however, the rising significance of mobile device data and easier methods of collecting that data make that default approach no longer viable. It’s best to assume mobile device data is important until determined otherwise.

The last five cases show that there’s a time and a place for requesting forensic examinations/collections or access to mobile devices. Typically, courts are more likely to grant those requests when discovery deficiencies have been identified.  Notably, some courts still apply a different proportionality standard to mobile devices than to more traditional ESI sources, so it’s important to provide as much information as possible to justify examination of mobile devices in your request.

In case you missed the previous blog in this series, you can find it here or head back to the beginning of this series to explore how discovery of data from mobile devices has become more important, while also one of the most challenging forms of ESI to preserve and collect. Next time, we’ll continue our discussion of recent case law regarding mobile device discovery and lessons learned from those cases by looking at cases involving sanctions requests.

For more regarding Cimplifi forensics & collections capabilities, click here.