October 9, 2012
This four part series examines the application of electronic discovery laws to mobile communications, and how the relationship between the two raises a litany of unique issues regarding privacy, data retention, and production.
Mobile Device Messaging and eDiscovery the Mechanics and their Effects on the Federal Rules
In the first installment of this blog series on mobile messaging, I gave an overview of how mobile messaging has fundamentally changed the way we communicate with one another. In less than a decade the ubiquitous text message has spread around the world. In this post I will discuss the basic technical underpinnings of text messaging as well as have a look into a range of case law affected by this technology.
On the macro scale, mobile messaging is pretty straightforward: a message from the sending mobile device (such as a cell phone) is stored in a central message center, which then forwards it to the destination mobile device (this can be another cell phone, an email address, or a social networking site, just to name a few). A sender, possibly offline, can choose to store the messages for sending at a later time. 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.
Short message services (SMS) were originally standardized across a global system for mobile networks. In recent years, SMS have begun to work with fixed networks, meaning digital messages can be sent or received concurrently with data, fax or voice communications. SMS are no longer relegated strictly between mobile phones. For example, Gmail, Google’s web-based email application, allows users to send text messages from their email account to a mobile phone. Skype, a Voice-over Internet Protocol (VoIP) provider, allows users to send text messages from wherever they can access their account, be it a mobile phone or a public computer at an internet café.
VoIP is widening the technology frontier. VoIP allows oral communications to be transferred from circuit-switched networks (i.e., land lines) to Internet Protocol networks and vice a versa. In other words, 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 complicates the world of e-discovery. Litigants appearing before a court seeking mobile discovery must 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. 31 (D.D.C. 2001); 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). In 2006 the federal rules were amended to include e-discovery parameters. While a useful starting point, the rapid advancement of technology coupled with ever-increasing volumes of data, ensure that e-discovery remains a complex hurdle in the way of swift and efficient litigation.
Most recently, third-party providers/supporters of mobile communications have come under the microscope. In People v. Harris N.Y. City Crim. Ct. (May 7, 2012), Twitter, the micro-blogging site, was ordered to produce the postings of Malcolm Harris during his Occupy Wall Street protest. Under this decision and many others, corporations and individuals have been ordered to produce, sometimes at considerable expense, computerized information, including e-mail messages, telephone records, and SMS records. It is important for counsel to remember that e-discovery can and will encompass relevant digital records, regardless of the type of device or the final destination of the data.
In the third installment of this series I will discuss the impact of electronic information on litigation and the Federal Rules of Civil Procedure, as well as a peek into privacy case law and how it weighs on mobile communications.