Is There an App for That? Protecting Corporate Records in a Mobile Communications World

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In America, litigation often follows success, and the cost of being unprepared for e-discovery can be steep. While organizations are now more accustomed to traditional e-discovery, courts are beginning to expect the collection and production of data generated from corporate mobile devices, offering new challenges to records and information, IT, and legal professionals.

Most large and mid-sized organizations are generally familiar with the expansive nature of document discovery in American litigation, extending to electronic documents (e.g., e-mail and word processing documents) as easily as traditional paper files. However, with increasing reliance on organization-administered mobile devices for work-related communications, courts have shown willingness to impose the same duties and obligations of preservation and production over these mobile devices and informal communications as any other document.

Courts are now turning up the scrutiny on litigants. Organizations, in turn, are slower to respond to these heightened obligations and generally aren't equipped to track non-verbal, mobile-to-mobile communications, exposing vulnerability in litigation.

Overview of E-Discovery Requirements

American courts grant litigants extremely broad powers in discovery, allowing them to compel production of vast quantities of potentially relevant documentation. While discovery can take many forms (e.g., oral depositions, written interrogatories, and requests for admission), requests for production of documents typically cause the most grief.

While collecting and reviewing hundreds of boxes of paper documents is challenging, harvesting millions of emails and terabytes of electronic data, including non-traditional means of electronic communication (e.g., mobile devices and social media), can quickly elevate the challenge to a nightmare.

Scope

The scope of discovery is generally governed by the Federal Rules of Civil Procedure, which were amended in late 2006 to specifically address electronically stored information (ESI). Under this amendment, Rule 34 defines ESI as "data or data compilations stored in any medium from which information can be obtained" either directly or indirectly. In other words, all forms of recorded communications are potentially discoverable.

Two broad caveats of Rule 26(b)(2)(B) limit discovery of electronic data: relevance and burden. While relevance is ultimately gauged on a case-by-case basis, the general rule is that information is relevant if it's likely to lead to the discovery of admissible evidence as stated in Rule 26(b)(1). When the information being sought relates to the claims and issues of the litigation, it's typically considered relevant.

Generally, burden is also assessed on a case-by-case basis. To block discovery on such grounds, Rule 26(b)(2) requires the protesting party to show the information sought is "not reasonably accessible because of undue burden or cost." If this threshold can be met, a court will allow the discovery to go forward only for "good cause."

Good cause can be shown through a number of factors, noted the advisory committee, including:

* Specificity of the discovery request

* Quantity of information available from other and more easily accessed sources

* Failure to produce relevant information that seems likely to have existed, but is no longer available on more easily accessed sources

* Likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources

* Predictions regarding the importance and usefulness of the further information

* Importance of the issues at stake in the litigation

* Each party's resources

When preparing for discovery, all forms of electronic data maintained by organizations in the regular course of business are fair game unless a very strong argument is made for irrelevance or burden. …