Mobile Device Messaging and E-Discovery: The Federal Rules Are Amended Again
Part 3 of 4
In December 2006, the federal rules were broadly amended, in another attempt for clearer guidance regarding the production of electronic information in litigation. The new rules added a defined term for electronically stored information and set out a series of requirements and obligations for parties to identify such information at the start of litigation.
Electronically stored information is defined in Federal Rule 34(a) as “other data or data compilations stored in any medium from which information can be obtained directly or, if necessary, after translation by the responding party into a reasonably usable form,” and plainly includes data stores, received or transmitted by mobile devices. Courts have responded to these new rules by actively requiring all parties to a case, whether corporate or individual, to preserve, identify, disclose and produce any relevant information on an electronic device. Failure to comply in good faith could result in sanctions from the court.
Among the amendments was the creation of a limited “safe harbor” from sanctions arising from the loss of electronically stored information as a result of the “routine, good faith operation of an electronic information system.” The application of this rule requires that the producing litigant demonstrate it tried to preserve evidence it knew or should have known to be relevant to the litigation in good faith. Mobile discovery usually requires the participation of third-party telecommunication companies, this safe harbor provision could apply to shield litigants who have difficulty producing documents from third parties in response to mobile discovery requests.
In 1928, Justice Louis Brandeis, in Olmstead v. United States, 277 U.S. 438 (1928), anticipated that technological advancement would enable the government to employ surveillance tools extending far beyond wiretapping. In his prescient dissenting opinion, Brandeis asserted that Fourth Amendment protections must be interpreted broadly to safeguard against new abuses that were not previously envisioned. Thus, he sought to protect the individual’s “right to be let alone” without regard to the different technologies that might be employed by the government to compromise that right. Brandeis’ forwardlooking focus on individuals’ underlying privacy interests, presents a compelling perspective that often differs from the courts’ treatment of data collected and retained by business.
Since Katz v. United States, 389 U.S. 347 (1967), federal courts have routinely forbidden third parties from tapping or monitoring oral communications. But they just as routinely permit businesses to track, store and sell data packets transmitted in the same way, either with the explicit or simply implied, consent of either party engaged in the transmission.
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** This is part of a four-part series which comprise an abridged version of the article “Upwardly Mobile,” published in the Los Angeles Daily Journal.