Episode 148: How the Failure to Preserve Data from a Mobile Device Can Drastically Affect Trial Strategy
Author: Kelly Twigger – eDiscovery Assistant
"It highlights two of our regular themes here on the Case of the Week — the need This week’s decision comes to us from Two Canoes LLC v. Addian Inc. This is a decision from April 30, 2024, and is written by United States Magistrate Judge Jose Almonte. As always, we identify each of the issues in the decisions within our eDiscovery Assistant database, and this week’s issues include ephemeral data, possession, spoliation, bad faith, mobile device, text messages, legal hold, scope of preservation, sanctions, cloud computing, and failure to preserve. "
"Although the messages disappeared from the WeChat servers, it remained within the user’s application — only on the user’s device, such as a cell phone — unless it has been otherwise backed up. Those messages would have lived on Wolworth’s device and Fisher’s device after they were deleted from the WeChat servers."
"The Court goes into the initial elements of spoliation of the data more than usual because of the facts of this case, and it’s not an analysis that we see very often.
Second, mobile devices are such an incredibly important part of ediscovery today and counsel have to be aware of the types of data that’s stored on phones that can be lost without taking active steps to preserve them. Here, it’s likely that the data was lost before counsel even knew about the case in November 2020, but the cost of preserving Wolworth’s phone would have been a drop in the bucket compared to defending this motion for sanctions and the risk that will come at trial on the issues of prejudice and intent."
If you do not follow Kelly Twigger’s newsletter and/or the eDiscovery Assistant service, you should. She gives us excellent analysis and on point commentary on this case highlights the complexities of mobile device (especially BYOD devices) preservation obligations and early preservation strategies. I have struggled with global enterprise clients to get them to understand how important critical ‘ad hoc’ mobile chat communications can be in cases. Remote selective collection technologies like ModeOne and Cellebrite make preservation practical when the content is potentially relevant. It is time for litigants to invest upstream in defensible scoping interviews and preservation collection capabilities when required.