Cell Phones and Discovery: What to Consider

If you are involved in litigation or reasonably expect litigation is forthcoming, here’s what you should consider when it comes to the relevant data on your phone:

The Duty to Preserve Electronically Stored Information

Under common law and as referenced in Federal Rule of Civil Procedure (FRCP) 37(e), a party must preserve documents and electronically stored information (ESI) when it reasonably anticipates litigation. Each time we use our phones, we create data, and over the course of an hour, day, week or month, that data accumulation is significant. As such, whenever you are involved in litigation or reasonably anticipate litigation is forthcoming, you must make every effort to preserve the data contained on your phone.

Our duty to preserve can easily be achieved. For instance, check your phone’s autodelete settings and make sure they are configured to preserve calls, text messages and voicemails indefinitely. If an autodelete setting is enabled, disable it immediately to preserve data going forward. Further, do not delete Third Party Applications (i.e., Twitter, Facebook, Instagram, etc.) from your phone, as they may contain relevant, discoverable information. Finally, do not reset your phone to its factory settings. Once your phone is “wiped”, it is very likely that all the previously existing data is lost forever.

What data can be collected from your phone and is it discoverable in litigation?

Our phones contain a wealth of data and most – if not all – of it is discoverable.

Examples of data that can be collected through forensic or self-collection include but are not limited to:

• Text messages, iMessages and messages from Third Party Applications such as Instagram, Facebook, Twitter and LinkedIn.
• Call logs.
• Voicemails.
• Contact lists.
• Emails. 
• Internet Search history, including websites visited in Incognito or Private Mode.
• Third Party Application data, including locations of where and when you accessed the application.

How is data collected from your phone?

There are two options when it comes to collecting phone data: forensic collection and self-collection.

1. Forensic Collection

Forensic collection is often considered best practice because it utilizes digital forensics software to recover data from a mobile device in a way that preserves all underlying metadata. However, forensic collection is expensive and involves relinquishing your phone for several hours (something we rarely do today).

What to expect during a forensic collection:

• First, you will surrender your phone to a forensic examiner. This can be done by handing over your phone in person or mailing your phone to the forensic examiner so he or she can conduct the collection.
• Next, the forensic examiner will use digital forensic tools to extract data from your phone while preserving all underlying metadata. Of note, you will have to give the examiner your passcode and any Third-Party Application passwords so that all data can be collected.
• Finally, after the collection is complete, the examiner will confirm that the collection was successful, and he or she will return your phone. From there, the examiner and your attorney will work to search and cull down the collected data.

2. Self-Collection.

Self-collection comes in many forms. It can be as simple as taking screenshots of relevant text messages, emails or Third-Party Applications, saving the screenshots, and sending them to your attorney. Self-collection can also involve utilizing Android, Apple/IOS or online programs to download your text messages and then send to your attorney.

The advantages of self-collection are very enticing – namely, it is cheaper and sometimes faster than a forensic collection. Yet, the disadvantages of self-collection (i.e., it is less precise and can potentially destroy relevant data forever if not done carefully) are significant and must be considered.

Correctly preserving and collecting ESI on cellphones is an important part of the discovery process. If you have any questions about this, or any other eDiscovery issues, please contact Chris Orrin or another of Klehr Harrison’s litigation attorneys.

Author Chris Orrin is E-Discovery Counsel in the Litigation Department at Klehr Harrison.