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Mobile Messaging and Electronic Discovery

By Daniel B. Garrie, Esq.



     Do you remember when there were two party phone lines or when a melodious-voiced operator would ring your phone and say "please hold, there is a long distance call for you"?

     Those halcyon days are over and the entire world of communications (if you are over 45 years old), is on a rocket to the stars where your voice, instant messages (IMs), Twitter feed, and email careen through the star studded universe and ultimately arrive at their intended destination.

     Welcome to the world of mobile messaging. The Operator has been fired, and the Satellite has been hired.

     The constantly evolving universe of mobile messaging has and will have in the future, a significant impact on litigation in the area of mobile electronic discovery. Mobile operating systems and other related software, such as Google’s Android, Apples iOS, RIM’s Blackberry OS, and Microsoft® Office Mobile applications, helps deliver a desktop-like experience to small devices. Powerful processors, cheap availability of large amounts of random access memory (RAM) and memory storage to prevent data loss, make the mobile device a robust business tool.

     While laws concerning electronic discovery are front and center, its application to mobile communications, which merges oral and data communications, presents a new frontier that raises a litany of unique issues regarding privacy, data retention, and production.

     While it may seem obvious, in the world of constantly changing technology, we should define mobile messaging. Mobile Messaging refers to your ability to send and receive short test-based messages via mobile phones using the Short Message Services (SMS, also known commonly simply as text messaging) function offered by mobile network providers. As mobile network systems and mobile phones advance, it has become possible to send more complex data such as group text messages and Multimedia Messaging Service (MMS), which allows users to send pictures, ringtones, and videos.

     The convenience and simplicity of SMS, combines with the evolution of pricing models (especially unlimited SMS bundles) have contributed to a significant growth of the SMS market in the U.S. and Europe over the past few years. According to a Yankee Group 2008 study, the U.S. consumer base for SMS messaging grew at an annual compound rate of 28% between 2003 and 2008. According to a recent Nielsen study of cell-phone usage, the average number of monthly texts for a 13- to 17-year-old teen is 1,742. One California teenager (apparently fearless of parental authority) received national publicity for racking up 14,528 text messages in a single month.

         The main application of SMS has been the exchange of text messages between mobile users. Many content providers have entered this market offering a variety of services, including: personalization of mobile phones (e.g., tones, logo, screen saver), directory services, dictionary, premium alerts regarding news, sports, finance, entertainment, chat rooms, dating services, and social network messaging (e.g., Facebook or Twitter activity updates).

     In order to drive profits, innovative network developers and operators have developed specific platforms for SMS content provision, including billing of the end user on behalf of the content provider. Innovation will continue to increase the scope and complexity of mobile messaging and thus the complexity of the ensuing e-discovery.

     On the macro scale, the technology underlying mobile messaging is pretty straightforward: a message from the sending mobile device (such as a cell phone) is stored in a central message center, which then forwards it to the destination mobile device (this can be another cell phone, an email address, or a social networking site, just to name a few). A sender, possibly offline, can choose to store the messages for sending at a later time. It is also possible to specify the period (often referred to as the validity period) after which the message would be deleted from the center, so that it would not be forwarded to the recipient mobile phone when it goes online.

     SMS were originally standardized across a global system for mobile networks. In recent years, SMS have begun to work with fixed networks, meaning digital messages can be sent or received concurrently with data, fax or voice communications. SMS are no longer relegated strictly between mobile phones. For example, Gmail, Google’s web-based email application, allows users to send text messages from their email account to a mobile phone. Skype, a VoIP provider, allows users to send text messages from wherever they can access their account, be it a mobile phone or a public computer at an internet café.

     Voice-over Internet Protocol (VoIP) is widening the technology frontier. VoIP allows oral communications to be transferred from circuit-switched networks (i.e., land lines) to Internet Protocol networks and vice a versa. In other words, it transforms standard oral telephone signals into compressed data packets that are sent over the Internet. This technology’s ability to originate or receive short messages (PC to device, device to PC, i.e., e-mail to short message systems and vice-versa) further blurs the once clear line between oral and data communications.

     This blur complicates the world of e-discovery. Litigants appearing before a court seeking mobile discovery must clearly define and identify the relevant e-discovery and then address the cost and burden of the mobile electronic discovery compliance.

     Since 1970, courts have struggled to integrate digital production’s highly variable cost structure into the federal rules’ traditional discovery principles. This struggle reached a crisis mode in the past decade, with federal courts attempting to align e-discovery with technological advances in such cases as McPeek v. Ashcroft 202 F.R.D. 31 (D.D.C. 2001); Rowe Entertainment Inc. v. The William Morris Agency Inc., 205 F.R.D. 421 (S.D.N.Y.2001); and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003). In 2006 the federal rules were amended to include e-discovery parameters. While a useful starting point, the rapid advancement of technology coupled with ever-increasing volumes of data, ensure that e-discovery remains a complex hurdle in the way of swift and efficient litigation.

     Most recently, third-party providers/supporters of mobile communications have come under the microscope. In People v. Harris N.Y. City Crim. Ct. (May 7, 2012), Twitter, the micro-blogging site, was ordered to produce the postings of Malcolm Harris during his Occupy Wall Street protest. Under these decision and many others, corporations and individuals have been ordered to produce, sometimes at considerable expense, computerized information, including e-mail messages, telephone records, and SMS records. It is important for counsel to remember that e-discovery can and will encompass relevant digital records, regardless of the type of device or the final destination of the data.

     In December 2006, the federal rules were broadly amended in an attempt to offer clearer guidance on the production of electronically stored information (ESI) in litigation. The new rules added a defined term for ESI and set out a series of requirements and obligations for parties to identify such information at the start of litigation.

     Electronically stored information is defined in Federal Rule 34(a) as “other data or data compilations stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form,” and plainly includes data stores, received or transmitted by mobile devices. Courts have responded to these new rules by actively requiring all parties to a case, whether corporate or individual, to preserve, identify, disclose and produce any relevant information on an electronic device. Failure to comply in good faith could result in sanctions from the court.

     Among the amendments was the creation of a limited “safe harbor” from sanctions arising from the loss of ESI as a result of the “routine, good faith operation of an electronic information system.” The application of this rule requires that the producing litigant demonstrate it tried to preserve evidence it knew or should have known to be relevant to the litigation in good faith. Mobile communications discovery usually requires the participation of third-parties, and this safe harbor provision can provide a shield to litigants who have difficulty producing documents from third parties in response to discovery requests.

     However, third-party production of data brings about another problem of privacy.

     In 1928, Justice Louis Brandeis, in Olmstead v. United States, 277 U.S. 438 (1928), anticipated that technological advancement would enable the government to employ surveillance tools extending far beyond wiretapping. In his prescient dissenting opinion, Brandeis asserted that Fourth Amendment protections must be interpreted broadly to safeguard against new abuses that were not previously envisioned. Thus, he sought to protect the individual’s “right to be let alone” without regard to the different technologies that might be employed by the government to compromise that right. Brandeis’ forward-looking focus on individuals’ underlying privacy interests presents a compelling perspective that often differs from the courts’ treatment of data collected and retained by businesses.

     Since Katz v. United States, 389 U.S. 347 (1967), federal courts have routinely forbidden third parties from tapping or monitoring oral communications. But they just as routinely permit businesses to track, store, and sell data packets, either with the explicit or simply implied consent of either party engaged in the transmission. Just as an individual expects personal text messages and emails to remain private, a corporation expects sensitive and proprietary data to remain confidential. How the courts will treat these forthcoming cases is unclear.  Businesses and corporate counsel should arm themselves with the knowledge of how their IT systems operate, who their 3rd party service providers are, and the nature of their agreements with them in order to best protect sensive data from being unnecessarily proced during discovery.  

     Oral and data communications now are propelled simultaneously over the same wires, 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 underlying 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 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.

About the Author

Daniel Garrie, Esq.

Daniel Garrie is not only an accomplished attorney, he also holds two degrees in technology – a rare combination which makes him an exceptional neutral in disputes involving he convergence of law and technology. Mr. Garrie is Principal and Managing Partner of FSRDG, a high-end independent consulting firm with a track record or reducing costs, and mitigating legal risks.

Mr. Garrie is the former in-house E-Discovery Counsel for Digital Reef (formerly Auraria Networks). He was previously a principal and Director of E-Discovery at the leading global consulting firm of CRA International, where he specialized in the synchronization of policies with information technologies and related best practices to ensure legal compliance for enterprises worldwide. Prior to joining CRA, Mr. Garrie was a vice president of LegalTech Group where he provided subject matter expertise and project management in engagements pertaining to E-Discovery, vendor selection, litigation readiness, digital and digital information risk management.

He holds a B.A. in Computer Science and an M.A. in Computer Science from Brandeis University and a J.D. from Rutgers School of Law.




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