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competence in Mobile Device Discovery

Competence in Mobile Device Discovery
A single failure to preserve data will not likely constitute an ethical violation that subjects an attorney to grievance committee action,43 but such behavior can easily result in court-imposed sanctions based on the party’s spoliation of evidence and the failure to request discovery of the opposing party’s digital devices likewise may not support a grievance action but could support a malpractice claim if the failure to request discovery falls below a competent lawyer’s standard of care. In other words, for a slew of reasons, every litigator must be sufficiently equipped to know what information is contained on, or accessed through, mobile devices, and be able to evaluate whether those digital files may have evidentiary value. Counsel must be attuned to preserve or request such evidence as part of actual or anticipated litigation. Preservation issues are especially pressing in the context of mobile devices. They not only have volatile data that may be overwritten in short order, but also are routinely upgraded with new models—with the older phones often turned in to the carrier and wiped clean.