Smartphones, tablets and other mobile devices may contain a broad range of electronically stored information (ESI), including emails, calendar entries, text messages, photos, videos, call logs, notes, documents, Web histories, GPS data and social media posts. In light of this potential wealth of information, attorneys involved in commercial litigation can’t afford to ignore these devices when developing a discovery plan.

ESI discovery is complex, and mobile devices present unique challenges. In particular, bring-your-own-device (BYOD) policies, which allow employees to use their personal devices for work, raise issues of privacy and control.

To address mobile device ESI early in the litigation process, you should:

1. Take inventory. Determine who in an organization uses mobile devices, how they use them and what types of devices and operating systems are involved. Does data reside in the device only, on a cloud-based server or on a dedicated server the business controls? Different types of data may reside in different places and may be controlled by the business, the user or both.
2. Determine whether you need access. Data stored on mobile devices may be more easily retrieved from other sources, depending on the type of data sought. Business-related emails and calendar entries, for example, are likely synced with the company’s servers. And information about the time a call was made or a text was sent is likely available from the wireless provider. In some cases, however, data resides only on the device.
3. Determine who’s in control. It’s important to ascertain whether a company with a BYOD policy is obligated to produce ESI stored on employees’ devices. The law in this area is inconsistent and continues to evolve. Generally, a party is required to produce ESI within its “possession, custody or control.”

Some courts deem that an organization or business controls information if it has a legal right to obtain it (pursuant to a BYOD policy, for example). Others require data to be produced if the company has the “right, authority or practical ability” to obtain it. In addition, some courts require parties to notify their opponents about evidence in the hands of third parties.

1. Preserve mobile data. To preserve discoverable information, be sure to include mobile data in any litigation holds.
2. Establish protocols. Have protocols and procedures in place to elicit relevant data while prohibiting discovery or disclosure of personal or privileged information.

An experienced forensic expert can help you design comprehensive ESI collection and preservation strategies. He or she can also assist in interpreting the data you retrieve from mobile devices and other electronic sources.

© 2015