Tech Talk
The New Frontier
of E-Communications
Part I: Why You Should Care About Mobile Device Chats
By Sara Hamilton (Atlanta office of Chamberlain Hrdlicka)
and James Wong (Harman Law)
E
ffective discovery requires identifying, discovering,
and analyzing communications between relevant
persons. This is particularly true in employment cases,
where the best outcomes can depend on the availability of
documented evidence in light of conflicting witness accounts.
This article is a two-part series that focuses on a growing
form of electronic communication—mobile device chats.
Part I briefly discusses Federal Rule 34 and the nature of
mobile device chats. Part II will discuss technical aspects of
requesting and producing such data.
Federal Rule of Civil Procedure 34:
From Paper to ESI
that parties could request documents in common electronic
formats (.doc, .xls, .pdf), as well as e-mails of various
file extensions (.msg), a practice in which attorneys had
already been engaging. However, to account for anticipated
changes in technology and communications, the drafters
also defined ESI broadly. Since implementation, Rule 34
has been applied to ever-changing forms of ESI, including
social media, websites, blogs, and text messages (SMS).
As discussed below, there is no reason that Rule 34 cannot
and will not be applied to the discovery of mobile device
chats in the very near future.
As the way we communicate has changed, so
have the Federal Rules of Civil Procedure with
regards to the types of documents discoverable
in litigation.
When Rule 34 was first implemented in the
1930s, “documents” were “papers, books,
accounts, letters, photographs, objects, or
tangible things.” In 1970, Rule 34 was revised
to “accord with changing technology” to include
the high-tech documents of the time: “writings,
drawings, graphs, charts, photographs, phonorecords, and other data compilations.”
But the most substantial change occurred in
2006, when Rule 34 was revised to include
electronically-stored information (“ESI”). By
including ESI, the drafters surely intended
12 THE ATLANTA LAWYER
March 2015
The Official News Publication of the Atlanta Bar Association