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Cell Phones, eDiscovery, and Privacy

Courts have been requiring text message preservation and production for many years now, so the idea of them being used is nothing new. However, as work-life balance gets more complicated for a variety of reasons, business lawyers now have to consider collecting clients’ cell phones in addition to the terabytes of data already being collected.  

As technology changes, so do the laws and procedures that accompany it. While in past years courts may have printed out text messages for review, they now fall under the term ‘ESI’ or Electronically Stored Information, and the preservation of them has become routine.  

With specialized eDiscovery vendors driving home the breadth of eDiscovery, companies have been refining their data security and use contracts for employees. What was once considered a dilemma of personal privacy is now considered a non-negotiable. The idea that seemingly private data and conversations are subject to legal review is now understood by even the most creative industries.  

Looking at the technology needed to extract, sort, and review text messages we can see rapid advancement. Whether it be a business specific phone or a personal one, it is important to remember that while it is primarily a phone, smart phones of today are handheld computers. This means that beyond text messages, there can be a variety of types of data being passed through these computers daily.  

Does this mean that a custodian must be ready for the entirety of their cell phone to be combed through for relevant data? Well, yes, and no. First off, even with text messages, there are parameters surrounding what will be reviewed.  Standard texts between parents and children may not be considered relevant in a business proceeding, and thus do not need to be reviewed. In larger cases such as fraud, insider trading, etc. larger amounts of text messages may be thought potentially relevant, but that would be on a case-by-case basis.  

However, cell phones hold more than just text messages now, and additional types of data must be taken into consideration as well. On TV, investigators search through every scrap of data on a cellphone to build a case, but that isn’t reality.  In fact, courts have put limitations in place to keep private communications that aren’t related to a case as far removed as possible.  

In Tingle v. Hebert, June 9, 2017, courts found the request to turn over any all-text messages or data exchanged from the plaintiff’s personal phone and send to employees the defendant oversaw, as an overly broad and not necessary for the type of case. The court then instructed the requested data to be limited to both a certain time frame and to specific topics, thus reducing the amount of information reviewed and used in court. Federal courts have recognized a constitutional right to privacy many times, citing a right to nondisclosure of one’s personal information. In this case, and many like it, any information not directly related to the case then becomes personal information.  

In the Tingle case the courts stated, “[t]he utility of permitting a forensic examination of personal cell phones must be weighed against inherent privacy concerns.” This leads to decisions on how wide and deep a search is appropriate to be considered individually. In fact, a number of cases have opted to search all available data on a cellphone including text, pictures, social media, and related messaging apps.  

In Red Valve Inc. v. Titan Valve Inc., a case including misappropriation of trade secrets and contract breach, the court found that Titan was in violation of multiple discovery orders and allowed a forensic examination of its data sources and complete examination of its devices. Titan had also, allegedly, failed to produce responsive documents because of a narrow interpretation of the court’s previous order, making this new order necessary to gather all relevant information.  

So, while people, and businesses, should rest easy that their personal information will not necessarily be aired for everyone to see, they should be aware that the scope of what is deemed relevant is up to the court based on the case. They should also make sure to provide everything related to the case from the beginning, to keep from having all of their information reviewed because of non-compliance. Appropriate inspection protocols and a thorough understanding of what is needed in the discovery efforts will keep both sides on track with their review process while protecting each party’s reasonable right to privacy.