Can anyone doubt the changes wrought by the modern “smart” cellphone? My new home sits at the corner of one-way streets in New Orleans, my porch a few feet from motorists. At my former NOLA home, my porch faced cars stopped for a street light. From my vantage points, I saw drivers looking at their phones, some so engrossed they failed to move when they could. Phones impact how traffic progresses through controlled intersections in every community. We are slow-moving zombies in cars.
Distracted driving has eclipsed speeding and drunken driving as the leading cause of motor vehicle collisions. Walking into fixed objects while texting is reportedly the most common reason young people visit emergency rooms today. Instances of “distracted walking” injury have doubled every year since 2006. Doing the math, 250 ER visits in 2006 are over half a million ER visits today, because we walk into poles, doors and parked cars while texting.
Look around you. CAUTION: This will entail looking up from your phone. How many are using their phones? At a concert, how many are experiencing it through the lens of their cell phone cameras? How many selfies? How many texts? How many apps?
Lately I’ve begun asking CLE attendees how many are never more than an arm’s length from their phones 24/7. A majority raise their hands. These are tech-wary lawyers, and most are Boomers, not Millennials.
Smart phones have changed us. Litigants are at a turning point in meeting e-discovery duties, and lawyers ignore this sea change at peril. The “legal industry” has chosen self-deception when it comes to mobile devices. It’s a lie in line with corporate bottom lines, and it once found support in the e-discovery case law and rules of procedure. But, no more.
Today, if you fail to advise clients to preserve relevant and unique mobile data when under a preservation duty, you’re committing malpractice.
Yes, I used the “M” word, and not lightly. Continue reading