Cellular Phones as Evidence, Wiping the Memory Won't Help

As the digital world turns it has become difficult to ignore how useful smartphones (such as the iPhone or BlackBerry) have become for creating efficiencies in the workplace.  Busy businessmen and women are spending less time tied to the computer by leveraging this technology to handle their essential e-mail and web browsing needs.  Smartphones have become so widespread in popularity that it's often a tool of choice for many employers, giving their employees a technological edge to better facilitate transactions and communication on the go.

As a result, these products are making appearances in court as evidence more often than ever.  In past cases, evidence left on a smartphone (whether it be e-mails, text messages, photos, schedules, GPS data, the list is near endless) has helped resolve cases ranging from drunk driving to trade secret theft.  If you thought wiping the phone's memory would be enough to create barriers, you would only be creating more trouble for yourself.

Southeastern Mechanical Services, Inc. ("SMS"), in the course of prosecuting employees of a construction services company for theft of trade secrets in Florida, obtained a court order which required the defendants to preserve all electronic data and computer files until further notice.  The order also barred them from "destroying any and all information and documents potentially relevant to" the claim.  Counsel for the defendants had requested their BlackBerry smartphones while possibly failing to warn them of the repercussions of wiping the device's memory.

Computer forensics experts would later discover that phone memories were intentionally wiped.  The defendants responded by saying any e-mail communication would be available on the server it was sent to.  The court noted, however, that employees used the phones both for work and personal e-mail accounts.  Communication to private e-mail accounts were not mirrored on the employer's server.  Based on the facts, the court granted SMS an adverse inference jury instruction due to the defendants' failure to keep the digital data on their BlackBerrys.

To read more, see the original post at The Legal Beat.