Smartphones are increasingly becoming not just useful tools for lawyers on the go, but potentially important factors in litigation.
Requesting smartphone data as part of electronic discovery “is something lawyers should think about both from an offensive and defensive perspective,” advised Andrew Cosgrove, a partner at Redgrave LLP in Minneapolis whose practice focusses on e-discovery, information management, privacy and data protection.
Cosgrove noted that in the past 18 to 24 months, regulatory authorities such as the Department of Justice have made a “strong move” toward requesting information from mobile devices during discovery, which they had previously largely ignored.
To start the process in a case, suggested John Simek, vice president of Sensei Enterprises in Fairfax, Va., ask what kind of smartphone the opposing party has and what he or she uses it for. In addition, find out the phone’s carrier so you have the option of subpoenaing data from that source.
Smartphones contain traditional phone information like voicemail, call logs and text messages. But as the storage capabilities of the devices continue to increase, users store greater amounts of unique and potentially relevant information on them, Cosgrove said.
For example, he said, “documents can now be downloaded to the device locally and edited.” And more and more applications are stored uniquely that may offer information for opposing counsel, such as trip information from a travel app or queries made to a search engine app.
The “next few years will only see an increase in the amount of unique, critical information found on these devices,” Cosgrove predicted.
Pictures and GPS location information can also provide key data, Simek noted. With GPS information, a phone can inform opposing counsel of a party’s location at a particular date and time.
When requesting data relating to a smartphone, don’t forget to include the device that it is synchronized with, Simek advised. Smartphones have two sources of data for discovery purposes: the data that resides on the phone itself and the backup files that accumulate when a smartphone is synced with another device (a laptop or a desktop, for example). Those back-up files can be a gold mine of data, Simek said, since most users are unaware that they contain copies of things like deleted texts and voicemails.
Corporate smartphones may offer less unique information than those intended for personal use, Cosgrove said. Most of the data on the phone can be found on a corporate server and some companies place tight restrictions on how employees can use the devices.
But other companies allow quite a bit of freedom and even permit employees to use personal devices for business purposes, Cosgrove said. That situation can be tricky, he explained, because it “creates a number of issues from an e-discovery perspective about how to collect data from only the corporate side and avoid the personal data, or vice versa.”
In an employment-related suit, for example, opposing counsel would have to be careful to separate out the work-related data from personal e-mail; alternatively, in a personal injury suit, discovery would need to be limited to related information and not the work data on the phone, complicating the collection process.