Tech Talk
Still Texting? OMG, That’s Already So OldSchool
NPR published the above-titled article earlier this year. As
the title suggests, text messaging is being replaced by an
even newer form of electronic communication: mobile device
chats.
Mobile device chats, also called mobile instant messages,
are electronic communications sent on a smartphone via a
contain information relevant to litigation. Approximately 50
billion mobile device chats are sent every day, compared to
only 21 billion text messages. To put the growth of mobile
device chats into perspective, the ratio of chats to texts
was 1:1 just two years ago. Further, the number of mobile
device chat users and the amount of time spent using chat
applications is only increasing. WhatsApp, founded in 2009,
has over 600 million active users, and Nielsen has reported
that the amount of time spent on mobile applications has
increased by 65% across all age groups in the last two years.
Always think about mobile device chats
when formulating discovery plans. This is
particularly true if the person from whom
discovery is sought is under the age of
49, lives in an urban or suburban area,
earns more than $50,000 per year, and
has completed at least some college.
specific mobile application that both the sender and receiver
have downloaded.
Popular chat applications include
BlackBerry Messenger, Google Hangouts, Apple iMessage,
WhatsApp, KakaoTalk, Line, and SnapChat. In addition to
actual typed messages, users can share pictures, voice and
video recordings, locations, contact files, and other types of
media in most chat applications. Because the chats are sent
on third-party platforms, chat histories cannot be obtained
from the mobile service provider like text and phone histories
can, but rather, must be obtained from the mobile user or
chat application company.
Though text messages and chats differ in some technical
ways, the basic premise and potential use in employment
litigation are the same.
Chats are communications
between two users; like text messages, they can include
everything from mundane conversations to incidents of
sexual harassment.
One can imagine their relevance
if they included discussions about overtime, attempts to
recruit former coworkers or clients, company secrets, work
performance, or work conditions.
discovery strategies.
Others have already recognized
that mobile chat data offers a
potential evidentiary goldmine.
For instance, the FBI has
long mined and analyzed chat
data in investigating crimes,
and personal injury attorneys
analyze mobile device activity
for evidence of distracted
driving. However, a search of
published employment cases
nationwide did not yield a
single mention of terms such
as KakaoTalk or WhatsApp
in the context of discovery,
and it is the authors’ personal
experience that few attorneys
regularly
consider
chat
application data in formulating
In summary, mobile device chats are a potential goldmine
that all attorneys should consider when formulating discovery
plans. Part II of this article will discuss the technical aspects
of requesting and producing such data.
Sara Hamilton is an employment attorney at the Atlanta
office of Chamberlain Hrdlicka. James Wong practices
intellectual property at Harman Law.
See footnotes here.
Tech Talk was created to encourage discussion and
provide relevant information regarding technological
advances in the legal industry and the implications
these advances have on the practice of law.
And, given the numbers, it is almost inevitable some chats
The Official News Publication of the Atlanta Bar Association
March 2015
THE ATLANTA LAWYER
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