A New Paradigm in Mobile Device Preservation

Extract from article by Craig Ball

Lately I’ve begun asking CLE attendees how many are never more than an arm’s length from their phones 24/7.  A majority raise their hands.  These are lawyers, and most are Boomers, not Millennials.

Smart phones have changed us.  Litigants are at turning point in meeting e-discovery duties, and lawyers ignore this sea change at peril.  The “legal industry” has chosen self-deception when it comes to mobile devices. It’s a lie in line with corporate bottom lines, and it once found support in the e-discovery case law and rules of procedure.  But, no more.

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

Yes, I used the “M” word, and not lightly.

I wouldn’t have called it malpractice a few years ago.  But two things have changed, and we can’t hide our heads in the sand.  These are paradigm shifts.