Mobile Device Chain of Custody Expert

When a party moves for sanctions over lost text messages or other electronically stored information (ESI), the motion often turns on facts that only a forensic examination can establish. Federal Rule of Civil Procedure 37(e) governs the loss of ESI that should have been preserved, and the record it requires is technical before it is legal. The expert role is to supply that record — through declarations and testimony supporting or opposing a spoliation motion — and to leave the legal conclusions to counsel and the court.

In that role, the analysis addresses the questions the fact-finder must answer: whether ESI was in fact lost, whether reasonable steps were taken to preserve it, whether deleted texts remain recoverable from device backups or carrier records, and what technical indicators bear on intent, such as the timing of deletions or the use of automated deletion features. These are matters the expert can establish from the artifacts; whether they amount to spoliation, and what sanction should follow, are determinations reserved to the court. For a fuller treatment, see our analysis on preserving mobile evidence and defending the chain of custody.

Can a forensic expert support a Rule 37(e) spoliation motion over deleted text messages?

Yes, within the proper scope. The expert can analyze whether deleted text messages remain recoverable from the device, its backups, or carrier records, assess whether reasonable preservation steps were taken, and document the timing of any deletions. Those findings can support or oppose a motion under Federal Rule of Civil Procedure 37(e). The governing legal standards, and whether they are met, remain questions for counsel and the court.

What does an expert need to establish for spoliation sanctions?

An expert can speak to the technical predicates: whether electronically stored information (ESI) was lost, whether the preservation steps taken were reasonable, whether the data remains recoverable from another source, and what indicators bear on timing and intent. The ultimate findings — whether spoliation occurred and whether sanctions are warranted — are legal determinations reserved to the court, informed by, but not decided by, the expert.