November 13, 2012
This four part series examines the application of electronic discovery laws to mobile communications, and how the relationship between the two raises a litany of unique issues regarding privacy, data retention, and production.
In the third installment of this blog, I reviewed the 2006 revisions to the Federal Rules of Civil Procedure and the implications of collecting data on individual privacy rights and corporate entities. In this final post I will look at what comes next in the world of mobile messaging.
Oral and data communications now are propelled like rockets over the same wires simultaneously, encapsulated in digital data packets. With the convergence of oral and data into a single transmission medium, the courts, like computers, cannot adequately distinguish between oral and data communications. The digital age and the use of the mobile and analogous technologies cause the legal distinctions, that ordinarily guided courts, to become muddled and confusing to administer. Not only do voice and data communications blend, but mobile devices are frequently used for both personal and business reasons. This convergence of electronic documents, oral communications and written messages together with varied cost structures and differing policy concerns applicable to each, cause the current production for litigation framework to break down.
In their efforts to understand the starburst of technologies, courts will need to recognize that because of the distributed and expansive nature of most mobile communications, the costs of identifying, preserving and producing mobile communications such as short message systems are significant. Production and preservation often involves third-party telecommunication service providers, such as Verizon, Sprint, T-mobile and AT&T. These generally higher costs of preservation and production, together with the greater protections traditionally provided to private, non-business communications, support the supposition that courts should continue to apply scrutiny when evaluating the necessity and scope of mobile discovery requests and apply the safe harbor provision of Rule 37(e), or various state equivalents, more widely when evaluating mobile communication discovery disputes. This would enable the courts to address the unique privacy concerns applicable to the mobile medium, and provide an efficient and cost-effective legal protocol for litigants and the court.
An alternative to a more liberal application of the safe harbor provision set forth in the amended Federal Rules of Civil Procedure is for the advisory committee to the rules or the federal and state courts to carve out a new, specific mobile discovery rule that balances cost versus reasonableness. Courts should consider and balance the need for the requested discovery and grant a litigant’s mobile discovery requests with caution (particularly where oral communications are sought) where the litigants are unable to avail themselves of the information through an alternative source. This approach is likely necessary to appropriately balance the substantial costs, burdens and policy concerns attendant to mobile electronic discovery.