Tech Talk
The New Frontier
of E-Communications
Part II: How to Request & Produce Mobile Chat Data
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 Part II of a series that
focuses on a growing form of electronic communication—
and a potential goldmine that all attorneys should consider
when formulating discovery plans—mobile device chats.
Part I briefly discussed Federal Rule 34 and the nature of
mobile device chats. Part II discusses the technical aspects
of requesting and producing such data.
The Technical Stuff: Requesting and Producing
Mobile Chat Data
Attorneys may not be as familiar with chat application data as
they are with other forms of ESI, but the discovery process
is very similar. Mobile chat data can be obtained directly
from another party under the same Federal Rules used to
discover physical documents and other ESI.
Whether requesting or producing mobile chat data, it may be
helpful to know a few technical details. Like .doc and .msg
files, mobile chat data exists as a specific file type, which
can be exported electronically via email or USB, converted
to a common file type, or printed as hard copies. However,
the options available depend on the specific chat application
and device.
Draft an interrogatory or ask questions during deposition
specifically about mobile chat application use.
The
interrogatory should be separate from those about social
16 THE ATLANTA LAWYER
May 2015
media, email, texting, or telephone usage, as mobile
device chatting is a distinct form of communication that is
not necessarily included under the social media or texting
umbrellas. Obtain the name of the specific chat application,
username, and mobile device phone number. If the chat
histories have been deleted from the device, this information
will be needed to subpoena the chat application company.
Based on the responses to the interrogatory or deposition
questions, consider drafting a request for production of
documents specifically seeking mobile device chat histories.
Include the names of specific chat applications if such
information has been obtained in discovery. If not included
in earlier discussions about other ESI, discuss the format of
production with opposing counsel.
Attorneys should first consider whether the chat application
is cross-platform. Cross-platform applications synchronize
chats
between
mobile
devices
and
desktops.
Data from cross-platform
applications can often be
accessed and produced from
the corresponding desktop
computer more easily than
from the mobile device.
For example, the chat data
from
Google
Hangouts
and Apple iMessage, two
popular cross-platform chat
applications, are maintained
in specific system folders
and logs, and once accessed
The Official News Publication of the Atlanta Bar Association