“The use of mobile devices is ubiquitous. As a result, it is not surprising that they are an increasingly relevant data source in litigation.”[1] That observation—which opens the Sedona Conference’s recent draft Commentary on Discovery of Mobile Device Data[2]—previews the pitfalls a litigant may encounter in discovery without a carefully thought out e-discovery protocol and a plan for preserving and collecting mobile device data at the outset of a litigation.
But how does a litigant know what to preserve and/or collect absent clear guidance? After all, “[t]here is no bright-line rule” governing what mobile device data is subject to discovery.[3] That is where the Sedona Conference’s recent draft Commentary comes in. The Commentary “provides both legal and practical guidance” regarding the “relevant standards and factors impacting discovery of mobile device data.”[4] Once finalized, the Commentary will be a useful guide that litigants can use both to guide their own conduct and to craft arguments regarding the appropriate scope of e-discovery of mobile devices. Entities that may be subject to the jurisdiction of U.S. courts (both state and federal) would be wise to familiarize themselves with the Sedona Conference’s Commentary and to consider developing internal policies and procedures that will foster defensible and proportional e-discovery practices if and when litigation becomes necessary.
Guidance from the Sedona Commentary on Mobile Device Discovery
A wholesale summary of the Commentary’s provisions is beyond the scope of this post. Executives, in-house counsel, and external litigators, however, should pay particular attention to several key points in the Commentary, including that a forensic collection may not be necessary where it “is not proportionate to the needs of the case.”[5]
- “Mobile Device Data” is Evolving
Mobile device data refers to electronically stored information (“ESI”) that is stored on or can be accessed from a mobile device. Given the rapid advancements in technology, no “one size fits all approach” is realistic or appropriate. In light of that, the Commentary dispenses with prescriptive rules and instead focuses on how to approach mobile device data generally. And while text message data is (and has been for some time) the most common type of mobile device data that is subject to discovery, the advent of cloud-based storage and ephemeral messaging has prompted changes to how mobile device data is expected to be preserved and collected. Companies are advised to develop policies and procedures governing the use of mobile device technology, and to regularly review those policies and procedures so that they are best-positioned, in the event that litigation arises, to defend their mobile device preservation and collection efforts. - Discovery Scope Hinges on Control and Context
A party’s practical ability to access mobile data, not just formal ownership of the device, is a significant factor in determining what information falls within a party’s discovery and preservation obligations. The Commentary identifies certain considerations that courts typically deploy to determine which mobile device data is within the scope of discovery. For example, BYOD policies (where existing) may provide guidance on whether certain mobile devices must be preserved and produced. Such policies also are useful to put employees on notice regarding the possibility that their mobile devices will be relevant and discoverable in litigation, particularly where personal mobile devices are used to communicate about or conduct business. The Commentary further notes that litigants should look to relevant employment contracts, which may require employees to cooperate with litigations or investigations. - Production Formats Are Not One-Size-Fits-All
As with other aspects of electronic discovery, production formats for mobile device data should be addressed early and cooperatively among parties to a litigation.[6] Litigants should be thoughtful regarding how this data is collected and produced. Data such as text messages, images, and shared files may require tailored approaches to address privacy or relevance concerns. Equally relevant is that different collection mechanisms may present limitations, e.g., taking screen shots of a text message may limit the availability of potentially relevant metadata. Where possible, the Commentary advises that litigants should confer early and often regarding a reasonable and proportionate approach to production formats. - Governance Matters—Policies Should Match Practice
Companies should consider regularly reviewing their internal policies (e.g., BYOD, offboarding, data management tools) to ensure continued alignment with actual practices. The Commentary observes that courts increasingly look for consistency between policy and execution in an effort to ensure that “corporations practice what they preach.”[7] If employees are allowed to use a particular messaging app for business, for instance, but there’s no policy or tool to preserve those chats, companies risk potential problems and adverse consequences if it turns out in discovery that relevant and responsive data was not preserved.
Conclusion
The Sedona Conference’s Commentary on Discovery of Mobile Device Data is both a welcome and helpful attempt to establish best practices regarding e-discovery of mobile devices. We expect the Commentary to evolve in response to the public comments received before the deadline. The Commentary’s substance, however, already reflects a comprehensive survey of what courts have come to expect from litigants who possess evidence stored on mobile devices.
Once the Commentary is finalized, in-house and external legal advisors should become familiar with the Commentary’s guidance and consider whether to develop policies, procedures, and internal best practices that will reduce the risk of discovery violations in litigation. While the Commentary expressly disclaims a “one size fits all” approach, it nevertheless provides a useful and comprehensive survey of many important factors that should be considered regarding the use, preservation, and collection of mobile device data. As with other forms of ESI, the Commentary encourages early and frequent discussions among opposing parties and counsel regarding the scope of mobile device discovery to help ensure a level playing field and to minimize the risk of ambiguities that could prejudice a litigant later in the case.
[1] The Sedona Conference: Commentary on Discovery of Mobile Device Data (Public Comment Version), Sedona Conference Working Group on Document Retention and Production (May 2025), https://thesedonaconference.org/sites/default/files/publications/Commentary_On_Discovery_of_Mobile_Devices_Data_Public_Comment.pdf (“Draft Commentary”), p. 1.
[2] The Draft Commentary may be found here. The public comment period recently closed, and the authors will publish a supplemental update once the final guidance is released.
[3] Draft Commentary at 10.
[4] Id. at 1.
[5] Id. at 20.
[6] See id. at 26 (“While production format is normally considered one of the last steps in the process of producing ESI, a number of provisions in the Federal Rules require or strongly encourage an early discussion among counsel regarding production format. The discovery conference mandated by Rule 26(f) and the joint discovery plan required by Rule 26(f)(3) ‘must’ include a discussion of discovery issues ‘including the form or forms in which [ESI] should be produced.’”).
[7] Id. at 33.
