E-Discovery on Smart Phones and Tablets — (Part 3 of 4)
This is the third post in a four part series examines the application of electronic discovery laws to smart phones and tablets and how smart phones and tablets raise a litany of unique issues regarding privacy, data retention, and production.
The Federal Rules Are Amended Again
In the previous installment of this blog I gave a quick summary of how mobile messages are transmitted between smart phones, devices and the case law that foreshadowed the revision of the Federal Rules of Civil Procedure. Following on that post, today I want to take a closer look at the 2006 revisions to the Federal Rules of Civil Procedure and the implications of collecting data on individual privacy rights and corporate entities.
In December 2006, the federal rules were broadly amended in an attempt to offer clearer guidance on the production of electronically stored information (ESI) in litigation. The new rules added a defined term for ESI 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 ESI 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 communications discovery usually requires the participation of third-parties, and this safe harbor provision can provide a shield to litigants who have difficulty producing documents from third parties in response to discovery requests.
However, third-party production of data brings about another problem of privacy.
In 1928, Justice Louis Brandeis, in Olmstead v. United States, 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’ forward-looking focus on individuals’ underlying privacy interests presents a compelling perspective that often differs from the courts’ treatment of data collected and retained by businesses.
Since Katz v. United States (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, either with the explicit or simply implied consent of either party engaged in the transmission. Just as an individual expects personal text messages and emails to remain private, a corporation expects sensitive and proprietary data to remain confidential.
How the courts will treat these forthcoming cases is unclear. Businesses and corporate counsel should arm themselves with the knowledge of how their IT systems operate, who their 3rd party service providers are, and the nature of their agreements with them in order to best protect sensitive data from being unnecessarily produced during discovery.