Craig Ball Says That Failure to Preserve Mobile Devices in Litigation is the “M” Word: eDiscovery Best Practices

by CloudNine
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In the latest post in his excellent Ball in Your Court blog, Craig Ball has some strong words for attorneys who fail to advise clients to preserve ESI from mobile devices when under a preservation duty.

In the post titled A New Paradigm in Mobile Device Preservation, Craig discusses how prevalent the use of mobile devices have become in our society, noting that “[d]riving under the influence of phones has eclipsed driving under the influence of alcohol as the most frequent cause of motor vehicle collisions” and that “[w]alking into fixed objects while texting is reportedly the most common reason young people visit emergency rooms today”.

As someone who never goes anywhere without my iPhone and a parent of two pre-teen kids for whom we have to set limits on their devices (for fear that they will literally spend the entire day on them), I can certainly relate to our level of addiction to our mobile devices in today’s society.

Because of that change, Craig issues a very strong statement when it comes to an attorney’s duty to advise clients to preserve ESI from these devices now:

“Today, if you fail to advise clients to preserve relevant and unique mobile data when under a preservation duty, you’re committing malpractice.”

That’s the “M” word that I referred to in the title of this post and Craig says he doesn’t use it lightly.

Craig identifies the fact that data on phones and tablets is not just a copy of ESI on other sources anymore and the increasing ease to perform a backup of data on your mobile device as two paradigm shifts that impact the requirement for mobile device preservation.  Today, it’s unique data without an unusual burden required to preserve that data.

Our coverage yesterday of this case where the judge recommended dismissal of the case after the plaintiff erased and reset her iPhone – 6 hours before turning it over to her attorney to be sent for forensic examination (naturally, she claimed not to know what happened) illustrates what can happen when mobile devices aren’t preserved.  Sadly, I expect we will see more cases like this in the future.

So, what do you think?  Is failure to advise clients to preserve ESI from mobile devices malpractice?

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