Published on Feb 7, 2018 The eDiscovery challenges with mobile devices seem to be all over the headlines in 2018. This year alone has seen White House officials and the Missouri governor struggle to address fallout from their respective use of self-destructing messaging applications. One of the most watched trials in the country – Waymo v. Uber – could very well turn on this same issue, i.e., whether Uber used self-destructing messages to conceal and destroy key evidence. These issues, coupled with the gigabytes of potentially relevant data found on other mobile messaging applications, spotlight the need for both clients and counsel to address mobile discovery concerns that will inevitably arise in litigation.
Spotlighting Mobile Discovery Challenges
Driven, Inc. has been at the forefront on these issues, proactively advising clients regarding the discovery and information governance challenges associated with mobile application data. Given its understanding of the issues and the need for clients to address them, Driven chose to spotlight the mobile discovery theme during its sessions at Legal Week 2018 in New York. In both of its sessions, Driven’s consultants led discussions that spotlighted issues and best practices for addressing mobile device challenges.
In Mobile Madness: Discovery Challenges with Mobile Messaging Applications, Tara Emory (Director of Consulting, Driven) discussed with Mike Klein (Assistant General Counsel, Altria Client Services) and Jonathan Swerdloff (Consultant, Driven) the technological and practical challenges of preserving and producing discoverable data from WhatsApp, iMessage, and other apps. Ms. Emory also engaged with U.S. Magistrate Judge Andrew Peck, who explained how courts generally view mobile discovery, along with related motion practice issues of which counsel should be aware.
The speakers also addressed nascent discovery issues surrounding self-destructing messaging apps like Wickr, Telegram, and Confide. Because self-destructing messages (also known as “disappearing” or “ephemeral messaging”) can eliminate content within a matter of seconds, their use could deprive adversaries of relevant evidence in litigation. This is precisely the issue that tripped up Uber and could impact its litigation position in the Waymo trial. Engaging forensic specialists, discovery counsel, and other knowledgeable experts to address the technological and legal issues associated with self-destructing messages could be the difference between preserving relevant information and responding to a motion for spoliation sanctions.
Judicial Views on Mobile Discovery
Questions surrounding the use of self-destructing messages in Waymo were also considered during Driven’s other session, The Annual Legaltech Judges Panel. In response to the Waymo situation, the judges on the panel – Judge Peck, U.S. District Judge Xavier Rodríguez, U.S. Magistrate Judge Lisa M. Smith, and U.S. Magistrate Judge James C. Francis (ret.) – explained that the use of ephemeral messaging would not necessarily justify the imposition of sanctions. The use of self-destructing messages could serve legitimate business purposes such as maintaining confidentiality or reducing stockpiles of electronic messages. The advent of litigation might warrant suspending the use of such applications to better protect against the spoliation of relevant evidence. Nevertheless, the judges felt such a step would need to be considered on a case by case basis.
While passing on the issue of whether clients should use or avoid self-destructing messages, the judges did concede this issue merits careful consideration. Because ephemeral messaging could create an appearance of impropriety, clients should weigh the benefits and risks of using these applications in the enterprise. Working with experienced counsel and consulting experts can help clients get in front of these issues before they become a problem in litigation.
Conclusion
Smartphones and other mobile technologies have revolutionized business dealings and personal relationships. In turn, they have changed discovery forever. While counsel may have some facility using mobile phones, many lawyers may not feel comfortable advising clients regarding discovery and information governance issues arising from mobile device use. To competently represent clients in litigation in 2018, counsel should be able to understand and handle the challenges of conducting discovery in an increasingly mobile world.
