Unlocking the mobile filing cabinet: the expanding role of PDA discovery.

• Author: Holt, Michael R.
• Position: Personal data assistants - Cover story

The letters "PDA" are no longer synonymous with "public displays of affection." These days, "personal data assistants" are all the rage. In just a short time, PDAs revolutionized the way we live and communicate. They are now a prominent part of our everyday lives. Devices like smartphones, tablets, "phablets," and even watches enable us to send, share, or receive seemingly limitless amounts of data.

Along with these devices come "apps"--millions of them. (1) As the Supreme Court recently observed, "the phrase 'there's an app for that' is now part of the popular lexicon." (2) Among other things, they help us take notes, manage our schedules, stay in touch with friends and business contacts, find significant others, watch movies, play games, shop, pay our bills, and count calories. Viewed collectively, these apps "form a revealing montage of the user's life." (3)

Just how helpful is all of this technology? Does it make the world better, worse, or somewhere in between? This is the subject of fascinating debate well beyond the scope of this article. What cannot be ignored is that people from all walks of life are glued to their PDAs. Need a reminder? Visit any restaurant, movie, sporting event, (4) or even a gym to observe the "smartphone slump" in action. (5)

This constant activity generates colossal amounts of discoverable information beyond emails and texts. The device itself can reveal a snapshot or portrait of someone's life and ultimately, their ability to function. Indeed,"[c]ultural boundaries between the personal and professional blend as round-the-clock email, texting, and networking sites became first socially acceptable, then the work place standard." (6) As the social network explodes, PDA content becomes an ever more prominent part of litigation. Two recent high-profile matters involve deflated footballs and a senseless act of terrorism. (7)

Sometimes, the use of a PDA is just as important as what is on it. For example, consider a claimant seeking damages based on reduced cognitive functioning. The claimant's PDA interaction could very well reveal information to refute the claim or otherwise corroborate it. Lawyers in careless driving cases may want to discover PDA activity beyond simple texting to demonstrate inattention to the road. And employment lawyers may have a keen interest in how their opponents interact with their PDAs while at work. The list goes on.

A discovery request seeking this type of electronic information reflects today's changing society and its ever-increasing reliance on cellular devices as a means of communication, information, and entertainment. Even the most rudimentary cellular devices contain a litany of different applications, games, programs, and other modes of communication, which directly relate to underlying litigation issues.

This raises the question of whether counsel may access, inspect, and mine information from the device itself. Traditionally, Florida's courts deny unfettered access to electronic information without some showing that the opponent hid information or otherwise failed to cooperate. That is not always the case with a PDA, where the focus of the request and analysis are different.

This article explores the phenomena of PDAs, when their examination might be appropriate and how to open the digital "filing cabinet." Also discussed are the use of experts to assist with examination and data extraction. Ultimately, PDA discovery in the appropriate case can dramatically impact the strength of both claims and defenses.

PDAs and Their Increasingly Prominent Societal Role

PDAs are loaded with potentially relevant information. A recent U.S. Supreme Court opinion thoroughly discusses this, albeit in a different context. That decision, Riley v. California, 134 S. Ct. 2473 (2014), recognized and elaborated upon the prominent roles that PDAs now play in our daily lives.

The underlying case concerned whether police may search the cell phone contents of an arrestee without getting a warrant (the court said "no"). (8) Discussing this issue, the Court humorously observed that modern cell phones "are now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they are an important feature of human anatomy." (9)

The Court also marveled at the storage capabilities of a cell phone compared to an old-fashioned wallet. "Cell phones ... place vast quantities of personal information literally in the hands of individuals." (10) These devices are "minicomputers" with an "immense storage capacity." (11) Cell phones "could just as easily be called cameras, video players, rolodexes, calendars, tape recorders, libraries, diaries, albums, televisions, maps, or newspapers." (12) They "also happen to have the capacity to be used as a telephone." (13)

These devices not only store information, they leave behind a trail that provides insight (sometimes not welcome) into the lives of users. "An internet search and browsing history, for example, can be found on an internet-enabled phone and could reveal an individual's private interest or concerns--perhaps a search for certain symptoms of disease, coupled with frequent visits to WebMD." (14) Indeed, "[h]istoric location information is a standard feature on many smartphones and can reconstruct someone's specific movements down to the minute, not only around town but within a particular building." (15)

Summing up, PDAs "reveal much more in combination than any isolated record." (16) Additionally, the capacity of cell phones ensure that "[t]he sum of an individual's private life can be reconstructed through a thousand photographs labeled with dates, locations, and descriptions; the same cannot be said of a photograph or two of loved ones tucked into a wallet." (17) The data on that phone "can date back to the purchase of the phone, or even earlier." (18) "Modern cell phones are not just another technological convenience. With all they contain and all they may reveal, they hold for many Americans 'the privacies of life.'" (19)

These words powerfully illustrate the vast amount of available information and the reasons and why that data might be relevant to legal proceedings. (20) But can attorneys begin the discovery process by immediately requesting access to the device(s) themselves, as opposed the information they store? Not so fast. As Florida's caselaw makes clear, there is no "one size fits all" when it comes to PDA discovery. Given the right factual circumstances, planning, and carefully tailored requests, PDA...