Todd Heffner of Jones Walker. (Courtesy photo)

Document discovery very often becomes a tit-for-tat exercise: Opposing counsel asked for our executive board minutes, so we have to ask for theirs; we asked for their CFO's emails, so we have to be ready to produce ours. These types of decisions proceed all the time, but where they often seem to stall is when it comes to text messages and other mobile data. If we ask for their text messages, they're going to ask for ours, so we'd better not. Hopefully by the end of this column you'll have a bit more confidence including mobile data in your document requests—assuming, of course, that they are relevant and proportional to the needs of your case (just another reminder that "reasonably calculated" was retired in 2015 with updates to the Federal Rules).

Mobile data is far more than just text messages. It can include location data, call logs, photos, videos, notes and more—all of it potentially relevant to your next dispute. That should be obvious without the author having to resort to some terrible cliche like "so much of business is done on the go" or "we're all addicted to our mobile devices." You know this, yet when it comes to discovery requests you suddenly turn into an ostrich. In this article, we'll cover some tips for preservation, extraction and production that should give you the basic lay of the land.

The first hurdle is preservation. In almost all cases, far more information needs to be preserved than will ever be produced, which can quickly translate into preserving the information on dozens of cellphones. But fear not, for there's an easy way to institute custodian-directed preservation of both iPhones and Androids that will avoid the need to create a forensic image of each phone. This level of preservation will be sufficient in the vast majority of, but not all, cases. With iPhones, the answer is iTunes—it allows you to back up your phone, and despite iTunes' imminent retirement, Apple's next OS, Catalina, will have the tools you need to accomplish this same task. With Android devices, the answer is Google One, which provides automated phone backup.

The skeptics out there may be wondering if custodian-directed preservation is sufficient—can we really avoid needing a forensic image of each phone? Yes. Think about how other information is preserved when a litigation hold comes out. Do you go around and create a forensic image of everyone's computer? Or do you tell them not to delete anything, make sure they've acknowledged and understand their hold obligations, and move on? (Don't forget periodic reminders about their continuing duty to preserve.)

There are always exceptions: You wouldn't send a litigation hold letter to someone accused of stealing trade secrets—you'd have security kindly remove them while you immediately create a forensic image of their computer. Similar exceptions will apply in the mobile context.

No matter what the setting, preservation is still a process that requires a good plan and careful monitoring, but it's not rocket science. And mobile data doesn't change the general thesis: Custodian-directed preservation is acceptable for just about every type of data that needs to be preserved. Craig Ball has written extensively about how to preserve mobile data—so when the time comes to act, his "Mobile to the Mainstream" guide should be your first stop.

Now that you've created backups for the mobile devices, how do you review the information? There are plenty of consumer-level tools that will extract just what you need from the backup you've created, and most of them cost less than $100. iMazing, Phone Rescue, and iBackup Viewer are all options, and most of the tools you encounter will: (1) allow you to view contents for free, but require a license to extract; and (2) extract the information into delimited CSV files, which, to the uninitiated, sound scarier than they actually are; they're basically just excel spreadsheets.

Given that mobile data is not as common as email, PDFs, Word documents and other document formats we deal with every day, you'll need to be sure to give consideration to the format in which it's exchanged. It's probably best to leave the required format open for refinement so that you can first take the time to extract the mobile data from the backup you preserved and see what your options are.

Finally, the steps outlined above work best for data that is unique and not app-specific (e.g. messages, calls, photos, videos, etc.). Mobile data is important when it's unique and can't be obtained elsewhere. So if work email is what you're after, just because it's on someone's phone doesn't make it the place to collect it. And if for some reason the contents of someone's Chick-fil-A or Vivino app will make or break the case, hire an expert.

If you want to read more about mobile-data discovery, consider the following sources: Craig Ball's blog "Ball in your Court" is fantastic, as is his "Mobile to the Mainstream" guide, both of which are available for free at http://craigball.com/.

Todd Heffner is a construction litigator and ediscovery specialist with Jones Walker in Atlanta.