Cellular Phone – Electronic Discovery Law

ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated

May 19 2023

To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding privilege, confidentiality, and other key discovery considerations. But what happens when parties establish requirements in their ESI protocols that they later cannot fulfill? Three recent case opinions reflect how courts can react negatively to such situations.

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Jun 23 2021

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)

Key Insight: In their discovery requests, Defendants sought data concerning the Plaintiff’s use of social media and text messages concerning matters relevant to the litigation. After Plaintiff provided responses to these discovery requests, Defendants filed a Motion to Compel Plaintiff to submit to a forensic examination of his mobile phone. Defendants based their Motion on the arguments of ensuring complete collection of data from the mobile phone, and more specifically, complete data of Plaintiff’s use of social media messaging and text messaging with several parties on said mobile phone.

The Court denied Defendants’ Motion because it found that the electronic stored information (ESI) already produced was complete and/or sufficient due to the Plaintiff already working with an ESI expert to obtain the requested data, particularly from the mobile device. In short, the Defendants’ lacked a sufficient reason to believe that the data already produced was not complete.

Similarly, the Defendants failed to demonstrate that a forensic examination of the mobile device would produce relevant data showing that Plaintiff had a pattern or practice of deleting the above mentioned messages. Moreover, the data produced by the examination would only show that a message was deleted, not when or why the message(s) were deleted, the contents of the message(s), or a pattern of deleting messages. In sum, the Court found that the requested forensic examination would be “disproportionate to the slight importance” it would provide to the litigation.

Nature of Case: Product Liability

Electronic Data Involved: Cellular Phone, Text Messages, Social Media, Social Media Messages,

Case Summary

Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Feb 17 2020

Key Insight: The court denied Plaintiffs’ requests for additional text message discovery or the forensic imaging of cell phone data. The court emphasized the privacy implications of producing broad cell phone data, which often contain “the most intimate of persona details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

The court recognized “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court directed the parties to work together to come to an agreement regarding the scope of a “carefully tailored, relevant search for such data.” Only if the parties cannot reach an agreement, would the court intercede.

Nature of Case: Fair Labor Standards Act, Employment Law

Electronic Data Involved: Text Messages, Cell Phone Data

Case Summary

Tag:Cellular Phone