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.
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