The Florida Rules of Civil Procedure allow any party to request from another party production of relevant electronically stored information (“ESI”) if the ESI is in the custody and control of the producing party. Fla. R. Civ. P. 1.350. “Custody and control” not only includes desktop computers, but also mobile devices such as laptops, tablets and smartphones. As more and more information becomes stored and accessed through these mobile devices, it becomes that much more important to understand the nuances associated with obtaining discovery from mobile devices. Here are five general points that anyone participating in the discovery process needs to know before going forward.
1. Mobile Electronic Devices Are Discoverable
In 2012, the Florida Supreme Court officially expanded the Florida Rules of Civil Procedure to specifically address production of electronically stored information (“ESI”). Previously, parties in state court could object to electronic discovery on the grounds that it was unnecessary. After the update, Rule 1.350(b) allows the requesting party to designate the format in which the responding party is to produce electronic discovery. This rule includes production of mobile devices. Holland v. Barfield, 35 So. 3d 953, 955 (Fla. 5th DCA 2010).
2. Physical Production Of Mobile Devices Only Happens In Limited And Strictly Controlled Circumstances
Just because there may be information relevant to a lawsuit on a device does not automatically mean the device itself must be produced. Courts are very aware of the privilege concerns associated with allowing a party wholesale access to a mobile device. Therefore, before even allowing production of a device, courts will first look to see if the information requested is available somewhere else or through less intrusive means. The Menke court established a three prong test to determine if a court can order physical production of a personal computer. The court indicated that a search might be approved only after the requesting party proved: (1) evidence of any destruction of evidence or thwarting of discovery; (2) a likelihood the information exists on the devices; and (3) no less intrusive means exists of obtaining the information. Menke v. Broward County School Board, 916 So. 2d 8 (Fla. 4th DCA 2005). At a minimum, the producing party needs to be allowed a chance to review the device to protect confidential and privileged information.
While a difficult standard to reach, Menke does not preclude mobile device discovery. For instance, in Antico v. Sindt Trucking, Inc., 148 So. 3d 163 (Fla. 1st DCA 2014), a court in a wrongful death action allowed the defendant to review the iPhone of the decedent. However, the order set strict supervision of the process, which included videotaping the devices inspection, installing software to guard against altering the phone’s hard drive and making a copy of the information stored on the phone so the producing party can first review the information before production.
As with all discovery, requests to for production of mobile devices should should be broad enough to obtain the sought-after information, but not so expansive as to require the Courts to restrict access. Competent counsel should seek limited disclosure based upon the issues at bar, so as to save precious resources in litigating only the most important issues. Courts are apt to protect privacy at the expense of litigant discovery rights.
3. ESI Only Needs To Be Preserved When Litigation Is Reasonable
Simply because a device is potentially discoverable in future litigation does not mean the person in custody of the device has to keep a record of everything on the device. In Florida, the duty to preserve information only arises when litigation is reasonably anticipated. League of Women Voters of Fla. V. Detzner, 172 So. 3d 363 (Fla. 2015). Litigation is reasonably anticipated when a complaint or demand letter is received, but other statute, contract or correspondence can also trigger this duty to preserve. For example, an email from a lawyer alleging a company’s conduct breached a contract can trigger a duty to preserve the information. Managed Care Sols., Inc. v. Essent Healthcare, Inc., 736 F. Supp. 2d 1317 (S.D. Fla. 2010). For a more detailed analysis of when litigation becomes reasonably anticipated, see our previous blog entry pertaining to when a business has a duty to preserve electronic data.
4. Employee Personal Devices Can Be Discoverable
Suppose a lawsuit is filed against a company. The plaintiff seeks discovery of a defendant employee’s laptop which he uses for work and personal use. Is it discoverable? Well, it depends. As previously mentioned, under Rule 1.350 the devices need to be in the custody and control of the producing party. Are employee’s devices within the custody and control of the employer? If the device is company issued, then yes. Furthermore, most businesses have a Bring Your Own Device (“BYOD”) policy that clarifies the company owns business communications, regardless of what device is used. However, just because the communications are owned by the defendant company, to receive production of an employee’s device the court must still go through the Menke analysis. Companies whose employees conduct business on personal devices may have a duty to preserve and turn over information requested from those devices, depending on the facts and circumstances of the case.
5. Discovery Is Expensive And Should Be Done In Proportion To The Pending Action
As Jeff Goldblum’s character famously remarked in Jurassic Park, sometimes people become so preoccupied with whether or not they could when they instead needed to stop and think if they should. Discovery needs to be proportional to the needs of the litigation. While the presumption is the producing party pays for producing their own information, Florida law allows courts to shift the burden of paying for production to the requesting party if the information is not “reasonably accessible due to burden or cost.” Fla. R. Civ. P. 1.280. For example, mobile device experts use a variety of data collection methods. These methods vary from making a forensic copy of the device (which collects and makes copies of pictures, text messages, and emails) to creating a forensic image of the device (which is a copy of if the information is not all the data on a device, including the location of the device when used and other metadata). Obviously, the forensic image reveals more information, but it costs substantially more money. If the requested format is too expensive for the style of the case, a court may order the requesting party to pay for it.
Before going down the mobile device route, parties requesting discovery should consider searching cloud based systems for the information, as this is normally cheaper. Unless the case specifically requires information that can only be found on the device, such as location and time based metadata, requesting parties would be wise to limit their discovery requests to the information rather than its source.