Mobile Device Messaging and E-Discovery, Part 2 of 4: the Mechanics and their Effects on the Federal Rules

Mobile Device Messaging and eDiscovery the Mechanics and their Effects on the Federal Rules
Part 2 of 4

On the macro scale, mobile messaging is pretty straightforward, the message from the sending mobile is stored in a central message center, which then forwards it to the destination mobile. A recipient, possibly offline, could also have the messages stored and available to be sent later. It is also possible to specify the period (often referred to as the validity period) after which the message would be deleted from the center, so that it would not be forwarded to the recipient mobile phone when it goes online.

Originally standardized and implemented in global system for mobile communications networks, short message systems inter-working with fixed networks have also been introduced. With personal communication system networks based on all three mentioned technologies, the global system for mobile communications, code division multiple access and time division multiple access, which support short message systems, digital messages readily can be sent or received concurrently with data, fax or voice communications. And the technology for voice over the Internet is proceeding like a lightning bolt. Voice-over Internet Protocol is widening the frontier. It can be described as the conveyance of voice, fax and unrelated services publicly or wholly over packet switched IP-based networks including peer-to-peer voice-over Internet Protocol and services connected to the Public Switched Telephone Network.

Voice-over Internet Protocol is a technology by which oral communications can be transferred from circuit-switched networks to or over Internet Protocol networks and vice a versa. It transforms standard oral telephone signals into compressed data packets that are sent over the Internet. This technology’s ability to originate or receive short messages (PC to device, device to PC, i.e., e-mail to short message systems and vice-versa) further blurs the once clear line between oral and data communications. This blur further complicates the world of e-discovery. Electronic discovery is now to be found on almost every constellation of human communication. Litigants appearing before a court seeking mobile discovery must now clearly define and identify the relevant e-discovery and then address the cost and burden of the mobile electronic discovery compliance. Since 1970, courts have struggled to integrate digital production’s highly variable cost structure into the federal rules’ traditional discovery principles. This struggle reached a crisis mode in the past decade, with federal courts attempting to align e-discovery with technological advances in such cases as McPeek v. Ashcroft, 202 F.R.D. (2001) 31 (201); Rowe Entertainment Inc. v. The William Morris Agency Inc., 205 F.R.D. 421 (S.D.N.Y.2001); and Zubulake v. UBS Warburg LLC, 217 F.R.D. 309 (S.D.N.Y. 2003).

Under these decision and others, corporations have been ordered to produce, sometimes at considerable expense, computerized information, including e-mail messages, support systems, software, voicemail systems, computer storage media and backup tapes and telephone records.

* To request a PDF of the complete article, please contact us.

** This is the part in a four-part series which comprise an abridged version of the article “Upwardly Mobile,” published in the Los Angeles Daily Journal.