Florida: a Litigation: General Commercial Overview

Personal Electronic Devices and Retention and Production of Electronic Device Evidence in Florida

In federal and state courts, business growth is reshaping the discovery process

Florida’s continued emergence as a destination for private capital, family offices, entrepreneurs and closely held businesses has transformed the state’s business litigation landscape. Shareholder disputes, partnership break-ups, restrictive covenant litigation, trade secret claims, and business torts increasingly involve a category of evidence that would have been far less significant only a decade ago: electronic communications stored on personal devices and third-party messaging platforms. Much of today’s commercial communication occurs over personal electronic devices through text messages, WhatsApp, Microsoft Teams, Slack and other messaging applications. Even robust corporate rules and efforts to prohibit business communications via text wither in the face of human nature. Critical evidence frequently resides on personal electronic devices that may or may not be subject to corporate control.

Evidence from personal electronic devices is discoverable and must be preserved

Everyone reading this article uses a smartphone. That device contains terabits of information. Our phones are tracking our daily activities and communications, and deleting information from our smartphones often does not mean that information is unavailable. To no one’s surprise, turning over one’s personal electronic devices for review and inspection in connection with litigation is an unwelcome and harrowing expense, not to mention an intrusive experience.

However, courts have had no difficulty finding that information from personal electronic devices should be preserved, searched and all relevant evidence from them compiled where they may contain relevant evidence. See Oakley v MSG Networks, Inc, 792 F Supp 3d 377 (SDNY 2025). There, the plaintiff filed an assault and battery case against Madison Square Garden after he was evicted from the garden on 8 February 2017. The lawsuit was filed on 12 September 2017. In 2022, the plaintiff was asked to produce any text messages or photographs regarding the incident, and responded that he had replaced his phone and no longer had access to any data from the older device. There was no iCloud or similar back-up; the plaintiff had made no effort to preserve the older device. The court concluded that the failure to preserve evidence from the plaintiff’s personal electronic device constituted spoliation of evidence and, while stopping just short of dismissing the case, agreed to instruct the jury that an adverse inference should be drawn from the failure to preserve evidence.

When must records be preserved?

Federal Rule of Civil Procedure 37(e) sets forth the remedies available when a party fails to preserve electronically stored information in anticipation of pending litigation. Pursuant to the Florida Supreme Court’s amendments to the Florida procedural rules effective 1 January 2020, Florida Rule 1.380(f) was amended to track the federal rule and is “to be construed and applied in accordance with [Federal Rule 37(e)]”. See the Advisory Committee Notes.

The obligation to preserve evidence from smartphones arises “when a party should have known that the evidence may be relevant to future litigation”. See Fujitsu Ltd v Fed Express Corp, 247 F3d 423, 436 (2d Cir 2001). At a minimum, any potentially relevant evidence from a smartphone must be preserved once a demand letter is sent or received.

What must be preserved?

Once the duty to preserve evidence is triggered, any information that a party knows or reasonably should consider is evidence or likely to lead to admissible evidence must be preserved. See Arista Recs LLC v Usenet.com, Inc, 608 F Supp 2d 409, 433 (SDNY 2009). This effectively requires initiating a fool-proof back-up storage system for smartphones that arguably contain emails, texts, WhatsApp messages, call logs photographs or any other information that could be relevant. Again, attorneys should warn clients against discarding or upgrading their mobile phones once a dispute arises that has any potentiality to result in litigation if the phone has any potentially relevant information on it. Alternatively, or in addition, lawyers should ensure that clients’ phones are backed up via cloud storage, including on the iCloud, such that if a phone is lost or destroyed relevant evidence will be preserved.

What do effective searches look like?

The collection of requested documents for production from a mobile device is complicated. Step one is the collection of devices from custodians identified as possibly possessing relevant evidence. Counsel should interview custodians to determine how communications were conducted.

Self-collection is not always flawed, but counsel should directly participate in the process. That means more than merely asking custodians to search. Self-collection by lay witnesses who have self-interest and may lack appreciation of disclosure obligations under the adversarial system is risky.

Targeted searches of devices used by custodians who may have relevant evidence will likely satisfy judicial scrutiny and comply with the obligations under the rules. Various commercial extraction tools (iMazing, Decipher, etc) exist to simplify the task. For iPhones, Apple supports searches in messages through contacts, etc.

To ensure that compliance with discovery obligations is achieved, records should be created and maintained regarding custodians, devices searched, search procedures and terms used, etc. This includes who performed the search, what search terms were utilised, what collection method was employed, date ranges for searches, review method, etc. Documenting this process in real-time is a matter of self-preservation, satisfies attorney obligations within the context of the judicial system, and will provide comfort to a reviewing court that genuine and robust efforts were made to preserve, search for, collect and produce relevant information from personal electronic devices.

Preserving metadata, authentication and chain of custody

The production of electronic communications often marks the beginning, rather than the end, of the evidentiary inquiry. Electronic communications contain metadata that may reveal when a message was sent, who participated in the communication, what device was used, whether information was modified after creation, and how the communication was stored or transmitted. In many disputes, this metadata becomes as important as the communication itself, often providing the context that transforms an allegation into evidence. The message itself is frequently only half the battle. The real dispute is whether the communication can be established as authentic, complete and reliable. Authentication disputes increasingly turn not on the content of a communication but on the metadata surrounding it. Evidentiary hearings frequently involve examination of forensic experts regarding extraction methodologies, preservation protocols and chain-of-custody safeguards.

Conclusion: the New Reality of Commercial Litigation

The retention, collection and production of electronic evidence from mobile devices has become one of the defining challenges of modern commercial litigation. The most significant evidence in tomorrow’s commercial disputes may never reside within a company’s email archive or formal record-keeping systems. Instead, it may exist within a text message thread, a messaging application, or data stored on a personal device. The businesses best positioned to navigate future disputes will not necessarily be those that communicate less, but those that understand where their communications reside, how they are preserved, and how they can ultimately be retrieved and deployed when litigation arrives.