Analyzing the Results

Forensic Discovery Educational Partner eDiscovery Today just released its 2022 State of the Industry Report (summarized here, with instructions for receiving a free copy) regarding trends in eDiscovery. One of those trends related to mobile device discovery, so we thought we would analyze the result and bust a few myths regarding misconceptions associated with the discovery of mobile devices.

2022 State of the Industry Report Mobile Device Discovery Results

The report includes survey results regarding key trends of 281 legal industry professionals (with breakouts by corporate, law firm, service/software provider and consultancy respondents) and observations from 29 key industry thought leaders regarding these trends, including Forensic Discovery Founder and CEO Trent Walton.

One of those trends was regarding mobile device discovery and the question posed to survey respondents was “What percentage of cases involve discovery of data from mobile devices?” Here are the overall results on that question:

100% of cases involve data from mobile devices: 3.6%

Most cases (greater than 50%) involve data from mobile devices: 23.5%

About half (50%) involve data from mobile devices: 19.2%

Some cases (20% to 50%) involve data from mobile devices: 30.2%

Very few cases (less than 20%) involve data from mobile devices: 18.1%

0% of cases involve data from mobile devices: 5.3%

This means that over half of respondents (53.6%) have data from mobile devices less than half the time and nearly a quarter of respondents (23.4%) has mobile device data less than twenty percent of the time. Wow.

Myths Regarding Mobile Device Discovery

With data from mobile devices being involved in fewer of half the cases, it seems as though some of the legal profession may buy into certain myths about mobile device discovery. So, let’s address four of those myths here, as follows:

Mobile devices aren’t being used enough to be discoverable: As we discussed in You Need to Be Aware of the Threats to Your Mobile Device from October, 68.1% of website visits globally in 2020 came from mobile devices—an increase from 63.3% in 2019. Desktop website visits only accounted for 29%. Certainly, mobile devices are being used regularly – even more than traditional desktops and laptops, at least for visiting websites.

Mobile devices aren’t being used for work: Really? Check the log of text messages on your iPhone or Android device. Do you have any texts with work colleagues in the log (about work)? If you don’t, you’re the exception. Text messages are a way of reaching work colleagues when they don’t respond to email. Even a text message that says “hey, did you read my email?” could be discoverable. Still don’t believe us? Here’s a case, Think Mobile Devices Aren’t Important During Discovery? This Case Shows You Why They Are, where mobile device data was critical for the defendant and failing to properly preserve that data led to sanctions.

Mobile devices don’t have any data that we can’t collect elsewhere: This is one of the most common myths out there. Text messages qualify as data you can’t collect elsewhere, but that’s not the only type of data from mobile devices that does. What else does? Many files, photos, videos aren’t available elsewhere as well. And neither are phone logs, notes files (from your phone), phone voice memos or geolocation data. This evidence is routinely relevant these days and only available on mobile devices.

Mobile devices are private and not discoverable: Certainly, the question of privacy is a valid one, especially for Bring Your Own Device (BYOD) devices. But in this case, Mobile Device Forensic Discovery: Here’s a Case That Illustrates the Importance, the Court discounted privacy concerns and ordered forensic discovery of mobile devices on two separate occasions because of their relevance to the case. Relevancy supersedes privacy in most litigation cases if the evidence is important enough to the case. And it’s important to have a well-defined BYOD policy which requires your employees to sign off regarding their understanding that their devices (which are used for work) are potentially discoverable for litigation.

Conclusion

Mobile devices these days are (or at least should be) a routinely discoverable source of evidence in discovery today. Yet, most cases still don’t involve discovery of mobile device data. Is that because legal professionals are still buying into the myths associated with mobile device discovery? Who knows?

Regardless, you shouldn’t buy into the myths of mobile device discovery – mobile devices are routinely relevant and discoverable these days and should be at least considered in every case from a discovery standpoint. They may not be discoverable in every case, but they are discoverable in many cases today. Don’t discount them when planning for discovery and don’t buy into the myths associated with mobile device discovery!