Introduction

The way litigators gather evidence has transformed dramatically. While traditional sources like emails and corporate documents remain significant, communication has shifted to mobile-based platforms such as text messages, WhatsApp chats, and Slack channels. As a result, these forms of communication have become pivotal sources of discoverable evidence in modern litigation.

 

The Legal Imperative: Mobile Device Discovery is Mandatory

Courts have clarified that overlooking mobile device discovery is not an option. In 2024, over 200 disputes were resolved due to failure in preserving mobile data, leading to severe sanctions, adverse inference rulings, and even case-determinative outcomes. Firms must proactively safeguard mobile electronically stored information (ESI) to avoid jeopardizing crucial evidence and endangering their cases.

 

Key Case Law Developments in Mobile Discovery

Recent case law in 2024 highlights various risks and challenges associated with mobile device discovery:

Text Messages: As Important as Emails

In Safelite v. Lockridge, a former store manager allegedly breached a non-compete clause by recruiting employees via text message. Due to auto-delete settings, his failure to preserve these messages led to court sanctions under Rule 37(e)(1). This illustrates the importance of disabling auto-delete features and the need for clients to verify preservation instructions.

 

Risks from Failing to Maintain Texts

In Maziar v. City of Atlanta, the failure to preserve relevant texts from a whistleblower's supervisor led to a denied motion for summary judgment and monetary sanctions. This case underscores that seemingly minor deletions can complicate litigation strategies, increase costs, and limit early case resolutions.

 

Consequences of Intentional Text Deletions

The case of Jones v. Riot Hospitality Group demonstrates that the deliberate destruction of text messages can lead to severe consequences, such as case dismissal under Rule 37(e)(2). This emphasizes that producing large volumes of other evidence cannot excuse deletions of relevant messages.

 

Best Practices for Litigators in Mobile eDiscovery

 

Identify Relevant Mobile Data Early

Litigators should inquire about custodians' communication habits, including platforms like WhatsApp, iMessage, Signal, or Slack. In anticipation of litigation, it is essential to disable auto-delete features and thoroughly document preservation steps.

 

Utilize Forensic Collection Methods

Remote collection tools are invaluable for defensibly capturing mobile data without device seizure. Third-party phone records can also be a safety net if texts have been deleted.

Incorporate Mobile Data in ESI Protocols

Be explicit about which mobile applications are subject to discovery obligations, and clarify expectations regarding message formatting, metadata, and access to custodian devices.

 

Conclusion: Embracing Mobile Data in Litigation

In the digital age, mobile device data is integral to litigation strategy. Messages from platforms like WhatsApp and Slack provide unfiltered insights into intent, misconduct, and decisions. Ignoring proper collection and preservation of this data risks losing key evidence, facing court sanctions, and incurring greater costs.

Litigators who proactively engage with mobile discovery will gain strategic advantages, while those who neglect it face dire consequences.