Not Addressing Mobile Devices Properly?
A recent case ruling shows what happens if you don’t address mobile devices during discovery. Failing to address them properly can lead to sanctions, even if you issue a litigation hold.
Hurricane Sally and Skanska
The case is In the Matter of In Re Skanska USA Civil Southeast Inc., and it was covered by Forensic Discovery Educational Partner eDiscovery Today here. The case involved construction contractor Skanska and potential economic damages after its barges knocked out the Pensacola Bay Bridge during Hurricane Sally, which made landfall in September 2020. Anticipating litigation, Skanska issued a written litigation hold on October 14, 2020, approximately one month after the hurricane.
Among the ESI that Claimants sought from Skanska was the production of cell phone data and the parties agreed to an ESI Protocol that included the production of text messages. Claimants’ first request for production of documents included a request for relevant text messages. In response, Skanska selected thirteen custodians for whom it would provide cell phone data. So far, so good, right?
A “Text Book” Case of Spoliation
Unfortunately, on June 16, 2021 – several months after the litigation hold was initiated – Skanska informed Claimants and the Court that cell phone data had either been wiped clean, deleted, or lost for five custodians. Each of these key custodians had cell phones that were issued by Skanska, but Skanska failed to collect text messages from their phones before the information was lost. In addition, Skanska failed to recognize that one additional custodian had a personal cell phone, from which some messages may have been deleted and the Claimants identified that at least thirteen messages were deleted from the other seven custodians before production.
Calling Skanska’s preservation failures “a text book case of spoliation”, Florida Magistrate Judge Hope T. Cannon stated: “Despite anticipating litigation, despite issuing a written litigation hold on October 14, 2020, despite Claimants filing their first suit in November 2020, and despite receiving discovery requests in April 2021, Skanska failed to suspend its normal document destruction procedures, failed to collect cell phone data from key custodians, failed to ensure its employees understood the litigation hold, and failed to take any steps to prevent the destruction of cell phone data. Moreover, while some of the text messages were included in production of data from other custodians, there is no dispute there are text messages which are no longer available from any source.”
Therefore, Judge Cannon granted in part the claimants’ spoliation motion, finding bad faith on the part of Skanska for failing to preserve the cell phone data, awarding adverse inference and monetary sanctions (which turned out to be over $92,000). While adverse inference sanctions may not case ending, the inability to introduce certain evidence can be just as significant as a case ending sanction.
Lessons Learned from the Skanska Case
Skanska may have issued a litigation hold reasonably promptly, but their actions afterward were hardly proactive. It’s one thing to issue a litigation hold, but it’s another to leave it to the custodians to fully understand their preservation obligations and preserve their own data for discovery. Here are three lessons learned from the Skanska case:
Interview custodians to understand where responsive ESI may be located: Many organizations forget to account for sources of ESI in discovery such as mobile devices, even if those devices are company issued. Prompt custodian interviews helps identify sources that need to be preserved that might be otherwise forgotten.
Issue customized litigation hold notices and follow up to confirm understanding: Boilerplate hold notices have no place in today’s world of various ESI sources. It’s important to understand what sources of ESI exist so that you can provide customized instructions to your custodians to preserve potentially responsive data – wherever it exists – then, follow up to confirm their understanding and address any questions. If the Skanska custodians had done so in this case, that may have reduced the ESI spoliation that occurred.
Collect promptly: Regardless how explicit the hold instructions are to your custodians, data spoliation can still occur if you don’t collect promptly. The sooner you collect ESI from potentially responsive custodians, the better you protect your organization from potential spoliation of data that can lead to sanctions. When it comes to mobile devices, it’s important to ensure the collection is forensically sound, so make sure you enlist the services of an experienced forensic specialist. Second chances to collect mobile device data don’t usually happen.
In this case, Skanska may have issued a litigation hold, but their failure to proactively develop an understanding of where potentially responsive data is located, issue detailed and targeted instructions to custodians to know what to hold and collect that potentially responsive data promptly was their undoing in this case.
It’s important to work with an experienced professional who can help you proactively address your preservation obligation. Simply issuing a litigation hold is not enough to demonstrate a defensible preservation approach to discovery anymore. The consequences for failure can literally cost you the case.
For more information about Forensic Discovery’s Mobile Phone Forensics services, click here.