Hastings Communications and Entertainment Law Journal

Mobile Messaging Making E-Discovery Messy: Mobile Messaging and Electronic Discovery


By Daniel B. Garrie, Maureen Duffy-Lewis, Richard L. Gillespie, & Mari Joller

Mobile Messaging and E-Discovery

Ah… do you remember when there were “two-party phone lines” or when a melodious-voiced operator would ring your phone and say, “Please hold, there is a long distance call for you”?

Well, those halcyon days are over, and the entire world of communications, as you well know if you are over 45 years old, is on a kind of “rocket to the stars” where your voice, through instant messaging (IM), Twitter® or email, seems to careen wickedly fast through the star-studded universe to arrive at an intended destination. All of this occurs now without the use of a cordless or mobile phone, or even a computer. Welcome to the world of mobile messaging.

The constantly evolving universe of mobile messaging now has, and will in the future have, a significant impact on litigation in the area of mobile electronic discovery (“e-discovery”). We have indeed reached a new frontier. Software programs such as the feature-rich Windows Mobile and Microsoft® Office Mobile applications help deliver a desktop-like experience to small devices. Powerful processors, cheap availability of large amounts of random access memory (RAM), and memory storage to prevent data loss make the mobile device a robust business tool.

While laws concerning electronic discovery are front and center, their application to mobile communications, which merges oral and data communications, presents a new frontier that raises a litany of unique issues regarding privacy, data retention, and production. This article examines those issues.

Mobile messaging refers to the ability to send and receive short, text-based messages via mobile phone using the Short Message Services (“SMS”) function offered by mobile network providers. As mobile network systems and mobile handsets advance, it will be possible to send more complex data.

To read the full article, go to Hastings Communications and Entertainment Law Journal

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