Going Mobile: The Current Landscape of Mobile Device Discovery

There is no doubt that mobile devices have become a constant in our daily lives. We take them everywhere and we can’t seem to live without them, even for a few short hours. In fact, you may be reading this very blog on your mobile device.

Here are three statistics that illustrate just how ubiquitous mobile devices are in our everyday lives:

• On average, people in the U.S. spend about 4 hours and 39 minutes daily on their mobile phones, excluding voice calls.
• Mobile devices account for 60.67% of website traffic.
• The number of smartphone users is expected to reach 7.1 billion in 2024, indicating that around 85% of the global population owns a smartphone!

Trends for Mobile Device Discovery

Because we use mobile devices continually throughout the day during both work and personal time, we generate a lot of electronically stored information (ESI) with these devices. Much of the ESI we generate is primarily located on the device itself, which means that mobile devices have become increasingly important in discovery.

So, it should be no surprise that discovery of mobile devices has become more common in litigation cases. According to the 2024 State of the Industry report published by eDiscovery Today, more than 4 in 10 of respondents (40.2%) either always has or usually has mobile device data in their cases – which is up from 27.1% just two years ago. 57% of respondents have mobile device data produced in their cases at least half of the time.

Data from mobile devices has become routinely responsive in civil cases, even including business communications on personal devices. According to one report, 80% of professionals currently use texting for business purposes and nearly 70% of employees think texting should be used for interoffice communication. And that report is seven years old, so the numbers are likely even higher now. And texts are far from the only source of ESI that is regularly relevant in litigation – other frequently relevant sources include photos, videos, notes, and voice memos.

ESI from mobile devices has also become common in criminal cases. In addition to texts, photos and videos, geolocation data, and phone logs are routine sources of evidence used to identify or exonerate individuals suspected of criminal activities. One example of the importance of geolocation data to identify suspects is the investigation following the January 6, 2021, attack on the US Capitol: Google Geofence data initially 5,723 devices as being in or near the US Capitol during the riot. These days, on just about any true crime show you watch on TV, mobile device data is routinely part of the key evidence that leads to convictions for violent crimes.

Yet, while mobile device data has become increasingly relevant in litigation, it has also been one of the most challenging forms of ESI to preserve and collect. Differences in mobile device operating systems (e.g., iOS, Android, Windows Mobile) and versions, strong security, encryption of the devices, and privacy concerns are among the challenges associated with the preservation and collection of mobile device data. Not to mention the fact that asking a custodian to give up their mobile device for even a few hours is challenging!

Because of these challenges and the fact that many of the devices are not within an organization’s control, some organizations are revisiting their corporate policies for mobile device management – if they even have one in the first place.

Conclusion

All these considerations are part of the landscape of mobile device discovery today, which introduces our new blog series on mobile device discovery! Over the next several weeks, we will discuss various considerations associated with mobile device discovery, including:

• Device Management Policies: Common corporate policies for mobile device management and resources for best practices.
• Data Discoverable on Mobile Devices: Types of data that is discoverable on mobile devices.
• Metadata Considerations with Mobile Device ESI: Metadata associated with mobile device ESI and how it can be used to authenticate the evidence or identify instances of evidence tampering.
• Mobile Device Data in Criminal Investigations: How mobile device data is being used in criminal investigations today.
• Recent Mobile Device Case Law Trends: Recent case law regarding mobile device discovery and lessons learned from those cases.
• Traditional Challenges Associated with Mobile Device Collection: Challenges that have impeded organizations from streamlining mobile device collection.
• Technological Advancements in Mobile Device Collection: How new technology is helping to simplify and streamline the collection of data from mobile devices.

In our next post in the series, we will discuss device management policies. There are more types of corporate policies for mobile device management than you might think!

Read the next two blogs in our series on mobile device discovery here and here to learn more about about corporate policies for mobile device management and types of data frequently discoverable on mobile devices, which is much more than just text messages.

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