Given how indispensable text and chat apps have become in our personal lives, it should come as no surprise that they have begun to infiltrate day-to-day communications in corporate America as well. While it is unlikely that texts will supplant email as the primary business communications vehicle in the near future, work-related texting is only going to increase, particularly among the newest entrants to the workforce, who value the immediacy and informality of the medium. For litigators, this presents a variety of e-discovery challenges, from complying with preservation obligations, to adapting search techniques to emoji- and abbreviation-laden messages, to efficiently reviewing and producing mobile content. Fortunately, in these still-early days of mobile discovery, we can begin to glean some best practices to help parties safely and effectively navigate the discovery lifecycle.
Preservation and Collection
As a threshold matter, to the extent the question was ever in doubt, judicial guidance now seems clear that—subject to proportionality considerations—relevant, non-duplicative mobile device communications, such as text messages, are subject to the common-law duty to preserve, as in, e.g., First Financial Security v. Freedom Equity Group, No. 15-cv-1893-HRL (N.D. Cal. Oct. 7, 2016), (issuing a permissive adverse inference sanction under new Federal Rule 37(e) for the defendant’s intentional failure to preserve relevant text messages). Nonetheless, while most sophisticated litigants are now comfortable with the processes and technologies needed to preserve relevant email for eventual review and production, there are several reasons why the same cannot yet be said for mobile device data.
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