The Sedona Conference^® (TSC) has published for public comment its Commentary on Discovery of Mobile Device Data.

The Commentary on Discovery of Mobile Device Data has been released by TSC’s Working Group 1 on Electronic Document Retention and Production (WG1). It is intended to provide both legal and practical guidance to parties, counsel, and the courts on relevant standards and factors impacting discovery of mobile device data, while addressing evolving technical issues affecting this type of data. To this end, it provides guidance for preserving, collecting, processing, searching, reviewing, and producing mobile device data.

The 40-page Commentary (available here for free download) includes eight main areas of discussion, following the Introduction, which include:

Defining “Mobile Device” and Data Types

The Commentary adopts a baseline definition from NIST Special Publication 800-79-2, refining it with four supplemental prerequisites: 1) Portable computing device with a small-form factor, 2) Designed to operate wirelessly, 3) Possesses local data storage, and 4) Includes a self-contained power source. That includes things like smartphones and tablets, which are used for communication or content creation. It does not include things like smart watches, pure Internet of Things (IoT) devices and devices running operating systems generally associated with desktop/laptop computers (e.g., Windows or MacOS).

Mobile device data is defined as ESI stored on or accessible from a mobile device. This includes:

• Text messages (SMS, MMS, RCS, iMessages)
• Voice messages
• Call logs/histories
• Contacts, calendar entries, appointments, reminders
• Location data (GPS coordinates, history)
• Photographs, videos, and other media files
• Downloaded files, deleted files
• Notes, locally stored passwords, internet browsing history, documents, local-application data
• Raw data stored in device memory
• Cached emails and application data accessible through connected accounts (e.g., cloud-based platforms), although the mobile device may not be the primary source for this data.

Scope of Discovery for Mobile Device Data

Discovery of mobile device data in federal litigation is governed by the Federal Rules of Civil Procedure, requiring the data to be relevant, not privileged, and proportional to the needs of the case. A party is generally not required to produce data outside their possession, custody, or control, or data identified as not reasonably accessible due to undue burden or cost. The section goes on to discuss factors influencing the scope of discovery and those helping to determine possession, custody, or control over employee mobile device data.

Guidance for Identifying Relevant Mobile Device Data Sources

Terrific section discussing common investigative tools for identifying relevant mobile device data sources such as written questionnaires for potential custodians and custodial interviews (including IT and personnel with knowledge of company policies/procedures). This section discusses potential topics for custodial interviews, which (as I discussed earlier today in referencing this article) are an important step in the discovery process.

Guidance for Meeting Preservation Obligations

Discusses that the obligation to preserve mobile device data is the same as for other ESI, requiring reasonable and good-faith efforts. Preservation obligations and efforts are assessed on a case-by-case basis and must be reasonable under the circumstances, with preservation methodologies existing on a continuum from legal hold notices on the low cost/burden (but high risk of data loss) side to professional forensic collection, which is inversely high cost/burden, but also high protection.

Guidance on Collecting Mobile Device Data

Discusses collection methods such as forensic image collection, logical collections, forensic cloud collection, and non-forensic targeted manual collection (e.g., screenshots, manual file collection) and considerations for each. The appropriate collection method depends on factors including the nature of the matter, relevant data, storage location, application types, custodian interaction, and accessibility from other sources.

Guidance on Searching Mobile Device Data

Discusses things like factors influencing search methods, such as how the data was collected, capabilities and limitations of different types of tools, the use of advanced analytic tools, and the court expectation for cooperation and transparency to aid in developing effective searches and minimizing disputes.

Guidance on Determining Production Format

Discusses factors to consider in determining the appropriate production format, such as variability in forms of mobile device data and how the data is collected (for example, don’t collect screenshots if you’re expected to provide metadata) and available production formats, such as:

• Short-message format: Messages combined into conversation threads with attachments/embedded content.
• Individual messages: Messages produced individually.
• Mobile device screenshots: Image files without metadata.
• Excel spreadsheet: Text messages, contacts, call logs, etc. in spreadsheet format.
• Native file production: As-collected data with metadata (suitable for attachments).

This section also discusses the lack of standards for producing text messages (e.g., producing entire threads vs. only responsive messages) and issues like shared files, attachments (including modern attachments!) and embedded images.

Impact of Information Governance

This section discusses essential elements of a comprehensive IG program for mobile devices, including things like mobile device framework (BYOD, COPE, COBO, etc.), assessment of the legal right or practical ability to control a mobile device and transparency with opposing counsel regarding production capabilities, employee onboarding procedures and more.

The Sedona Conference Commentary on Discovery of Mobile Device Data is open for public comment through July 3, 2025. Questions and comments may be sent to comments@sedonaconference.org. The drafting team will carefully consider all comments received, and determine what edits are appropriate for the final version. You know the drill. 😉

This is the second notable commentary in less than two months from the WG1 working group, after publishing the public comment version of the Commentary on Discovery of Collaboration Platforms Data in early April. Nice!

So, what do you think? Do you think the Commentary on Discovery of Mobile Device Data will help organizations address challenges with discovery of mobile devices? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.