The Atlanta Lawyer March 2015 - Page 13

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 13