As we all know, mobile phones and social media applications are storing and retaining more information about their users and their activities than ever. The range of electronically-stored information (ESI)that is fair game in a lawsuit and the case law that governs continues to evolve. Just how much is discoverable, and what are the standards applied by the courts?
Here’s a look at some leading cases and matters where mobile or social media activities or issues arose and how they impacted the discovery process.
Documents, Photos and Other Items Stored in the Cloud
When internal notes are backed up or synchronized to the cloud, they may be discoverable unless privileged or irrelevant. Apple’s default Notes app, for instance, can automatically synchronize memos with an email account. “It might still be privileged, depending on whether there was ever an intent to disclose it,” says attorney Jay M. Levy.
The range of electronically-stored information (ESI) that is fair game in a lawsuit and the case law that governs continues to evolve. Just how much is discoverable, and what are the standards applied by the courts?
Images stored in a cloud can also be recovered after deleted. Unless settings are changed, phone cameras typically use GPS coordinates to conveniently record where and when the image was taken. Since every photo taken on a cell phone can document a story, they can be discoverable in multiple formats.
In what format must the files be produced? See, Wilson v. Conair Corp., 2015 WL 1994270 (E.D. April 30, Cal. 2015) (finding that “rules do not require a party to produce ESI in the form most helpful to the opposing party”).
Deleted Texts or Emails
Just because a user swiped to delete doesn’t mean the phone has actually erased the record of a text. And sometimes, when a someone becomes aware of a potential lawsuit, they make the unfortunate mistake of deleting the texts or emails thinking they are gone forever. A variety of eDiscovery tools can pull seemingly-deleted data from phones which have not overwritten the storage space or been reset to factory conditions. That goes for browser history and search terms as well.
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Using a browser with an incognito or private mode may make it more difficult to discover from the phone itself, but advanced discovery can still bring such activity to light. When is there a duty to preserve the information? Many courts have discussed this issue at length.
See, Gladue v. Saint Francis Medical Center, 2015 WL 1359091 (E.D. Mo. March 24, 2015) (holding that where a defendant employer neither knew of — nor anticipated — a pending lawsuit and deleted emails after terminating an employee, the court found defendant had no duty to preserve).
Social Media Posts, Public or Private
Who wants to know about daily workouts, all-night dance parties, elegant vacations, and general fun times posted on Facebook? The opposing party in a personal injury, disability, compensation, divorce, or custody case, to name just a few. Case law is littered with debunked and discredited claims stemming from people who are in places or doing things that their alleged conditions prohibit them from being able to do so. Setting posts to private or restricted still makes the matters discoverable. “Believe me, [Facebook] is the first place [attorneys] look now.” Levy says.
See, Milo’s Kitchen Dog Treats Consol. Cases, No. 12–1011, 2015 WL 1650963 (W.D. Pa. Apr. 14, 2015) (finding that a user’s designation of a Facebook page as “private” did not shield it from discovery if the information sought is relevant; parties have no “reasonable expectation of privacy” in the information posted on Facebook).
Attempts to Conceal or Destroy Evidence
Phones will even carry the digital marks of being combed over in an attempt to cleanse them of incriminating information. It’s not uncommon for people to go through their phones and delete things once they have been named in a lawsuit. Practitioners know, however, that discovery rules prohibit parties from erasing records or destroying potential evidence once they have been notified of a legal action. This type of spoliation can lead to fines and sanctions. “If you can’t produce something you should have [preserved], it could be viewed as being harmful to your case,” Levy says.
See,Blue Sky Travel & Tours, LLC v. Al Taylor, 2015 Wl 1451636 (4th Cir. March 31, 2015) (finding that the correct legal standard for preservation of evidence occurs once notice of litigation has been given).
Reviewing the digital history of a mobile device or social media activities can create a chronological timeline of events that can be harmful or helpful to the parties of a lawsuit. As the case law continues to develop, so does the ability to uncover the evidence through eDiscovery and managed review.
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