A duty to use reasonable efforts to preserve potentially relevant information, including electronic data, arises when litigation has commenced or is reasonably anticipated. Today, mobile devices often contain unique, relevant data. Moreover, due to available technology, preserving mobile data is now generally easy and relatively inexpensive.
Quite simply, the combination of unique, relevant data with easy, inexpensive preservation tools means that mobile devices must now be part of the preservation effort. Anything less risks sanctions to the client, and a malpractice claim to any lawyer directing the preservation effort.
Constant Change in the Digital Universe
Until recently, many determined that the burden of preserving mobile data was great, especially when the servers already had essentially all relevant data. A combination of cultural and technological development has changed that calculus.
More and more key people now conduct business on their mobile devices, especially phones. They make no attempt to ensure that text messages and other data are sent to their company servers. Thus, due to changes in how people work, mobile devices are now much more likely to contain unique, relevant data.
The other development is technological. Mobile device users can now make a full unencrypted backup of their phones, for free, without even surrendering possession of their devices; and they can place that backup information in a safe place, guarded by counsel or the IT department. While this backup will not be a “forensic image” of the phone, it will preserve most of the data, and generally all relevant data, at essentially no cost.
Not Perfect, but Reasonable
Some will argue that the backup will miss data that a full forensic effort will preserve, and that the cost of a full forensic effort on mobile devices makes them exempt from the preservation effort. The rules do not require perfect preservation, but they do require reasonable preservation. The cost and hassle of a full forensic preservation probably makes that unreasonable, but even with the impracticality of full forensic preservation, the simple backup appears very reasonable.
It Still Is About the People
For backing up mobile devices, the technology is easy; the challenge will be the people. Getting employees, agents, and consultants to agree to backup their “personal” devices as part of a preservation effort will require them, as well as lawyers and IT professionals, to do things differently, and to do things that will initially feel uncomfortable. The rules do not have a “discomfort” exception, and I doubt that many judges will read such an exemption into them.
Check Out “Ball in Your Court”
This Alert came as a result of the blog posts I receive from my good friend, Craig Ball. When it comes to the interplay between electronic data and litigation, none are better. For the specific post on this issue click here. You can also sign up to get his posts via email; a move I strongly encourage.