Prosecutors revealed late Monday that cellphone evidence from Donald Trump could be key evidence in the upcoming 2020 election-related trial.

As reported by CBS News (Investigators accessed Trump White House cellphone records and plan to use them at trial, special counsel says, written by Robert Lagare & Robert Costa and available here), according to special counsel Jack Smith, a technical witness who examined the phone for usage information “throughout the post-election period” might be called to discuss the data during the trial.

In a court filing Monday (linked here by Politico), Smith indicated that he plans to call an expert witness who extracted and reviewed data copied from Trump’s phone, as well as a phone “used by another unidentified individual in Trump’s orbit.”

The expert witness, whom Smith refers to as “Expert 3” in a court filing, “extracted and processed data from the White House cell phones used by the defendant and one other individual (Individual 1),” Smith’s filing said. Expert 3 also “specifically identified the periods of time during which the defendant’s phone was unlocked and the Twitter application was open on January 6.”

The filing also says the witness “reviewed and analyzed data on the defendant’s phone and on Individual 1’s phone, including analyzing images found on the phones and websites visited.”

CBS News reports that “Individual 1” named in the indictment is former Trump lawyer Rudy Giuliani, who is one of six unnamed and uncharged individuals in the indictment.

The prosecution filing does stop short of claiming that the experts will be able to prove that activity on the phones directly involved Trump. Trump’s phones were routinely managed by others, including his social media manager, Deputy Chief of Staff Dan Scavino. So, it might seem that cellphone evidence from Donald Trump may not be that important.

Nonetheless, CBS News’ chief election & campaign correspondent Robert Costa and The Washington Post’s associate editor Bob Woodward reported last year that the lack of an official White House notation of any calls placed to or by Trump for 457 minutes — from 11:17 a.m. to 6:54 p.m. — on Jan. 6, 2021, meant that there was no record of the calls made during the height of the breach.

That means that cellphone evidence from Donald Trump has a 7 hour and 37-minute gap – at the most critical time on the most critical day. Makes the 18.5-minute gap from the Watergate tapes seem inconsequential by comparison, right? 😉

What’s notable about that is that the lack of evidence…could be evidence for the cellphone evidence from Donald Trump.

This is not a political post; it’s an eDiscovery observation of just how important mobile devices have become in all types of discovery situations. Even the evidence they don’t have is significant evidence.

So, what do you think? How important has mobile device data become in your discovery projects? Please share any comments you might have or if you’d like to know more about a particular topic.

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