Remember when phones used to be for making calls? Now there's all kinds of data to be found on a mobile device, and the challenges of finding or obtaining that data was explored in great depth throughout the duration of the "Mobile Data: Issues in Data Privacy and Data Protection" panel at Legalweek 2020 in New York.

And to hear Ed McAndrew—a panelist and partner at DLA Piper—tell it, this is not an issue that attorneys can ignore.

"I think it's actually bordering on malpractice at this point not to exploit mobile data," McAndrew said.

To be sure, the category of "mobile data" isn't limited to just phones, which creates an issue in and of itself given the sheer volume of information that is floating in the ether. McAndrew pointed to the explosion of relevant data now pertinent to any given case as something with which courts are continuing to grapple. And it's only posed to get worse.

For example, panelist and solo practitioner Gail Gottehrer raised the specter of autonomous vehicles. While car companies have yet to reach the threshold of a vehicle that can drive itself under any conditions, today's motorists are already behind the wheel of machines that collect a tremendous amount of information. Features that allow a car to tell drivers when they are about to back into a tree or a fire hydrant rely on sensors and cameras that could be exploited as potential treasure troves of discoverable data.

"How much of that is your automaker keeping? How much of that is your insurance company getting?" Gottehrer said.

For lawyers, the amount of data that can surround any given case requires them to distill a matter down to its essential components. But just because an attorney may know exactly what data they want to retrieve, that doesn't necessarily make it any easier to obtain. A common dilemma faced by many companies is the intermingling of employees' personal and work phones.

While many organizations may opt to initiate a policy banning their workers from conducting business on personal phones—which could be difficult but not impossible to get during discovery—it's not out of the realm of possibility that someone will slip and text a client from their own device.

"It's really important to understand how people actually behave. You can write a policy down, but if people are not following the policy you are still at risk," said panelist Ines Rubio, head of information management and incident response at BSI.

Even if a phone is obtained for litigation, there are still technical hurdles that may need to be cleared before the information inside can be accessed. There are a wide variety of mobile devices on the marketplace, each of which may require a different approach or methodology in order to crack. People in their infinite variety also keep things interesting, since no two mobile device owners may store or label data the same way.

Of course, from a privacy standpoint, there may be some people who consider those difficulties to be welcome news. Shahaf Rozanski, head of Cellebrite business solutions, indicated that while most technology vendors are putting an emphasis on user privacy, there are still tools on the market that can be used to circumvent those measures.

Countermanding those countermeasures may require some creativity. According to Rubio, she typically cleans any unnecessary data from her device and transfers it to another network prior to traveling, which provides some comfort in the event that the phone is confiscated at a border or otherwise.

"If it doesn't have to be on my device I shouldn't bring it with me," Rubio said.