The Atlanta Lawyer March 2015 - Page 12

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