Tragedy usually leads to two questions: ‘Why?’ and ‘How?’ Finding the answers to these questions can serve a range of purposes. There’s the human nature element of the grieving process and seeking to find closure. There’s also a focus on safety to understand the pieces of an event to determine if it might happen again. These questions inevitably lead to whether certain people or parties were at fault. That is the case with the helicopter crash in early 2020 that took the lives of Kobe Bryant, his daughter, Gianna, and seven other people. Part of the investigation has focused on the text messages leading up to the accident.

Looking For Answers Into Kobe’s Death

The news was shocking on January 26, 2020, as nine people perished, most notably Kobe Bryant, when their helicopter crashed into a Calabasas hillside under heavy fog. Ara Zobayan, reportedly Bryant’s favorite pilot, piloted the aircraft and had flown the same group to the same destination the day before. Due to weather conditions during the crash, questions were immediately asked if the helicopter should have flown in such heavy cloud cover.

Less than a month later, Vanessa Bryant, Kobe’s widow, filed a wrongful death suit against Island Express Helicopters, the helicopter’s operator, in Los Angeles County Superior Court. The lawsuit alleges numerous counts of negligence and wrongful death against Island Express and that the pilot failed to operate the aircraft safely.

Digital Pieces To The Puzzle

Some of the evidence in the case will center around the National Transportation Safety Board (NTSB) investigation of the crash. The NTSB didn’t find any engine or mechanical failure with the helicopter, and Zobayan did not have alcohol or drugs in his system. After almost six months, the NTSB released over 1,700 pages of interview transcripts, emails, pictures, and text messages. These documents don’t draw any conclusions about the crash, but the text messages provide a minute by minute record of the accident by all parties involved.

Zobayan, Island Express Helicopters, and the broker who set up the flight all operated under a standard protocol that included individual and group text messages that occurred pre and post-flight. The messages exchanged the day before and the day of the flight demonstrate some level of concern regarding the weather. Within most modern investigations and cases, smartphones contain crucial pieces of evidence.

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Digital Evidence In Text Messages

Smartphones house an incredible amount of objective data. Electronically stored information (ESI) is continually growing on an individual user’s phone. Application data, photos, videos, WiFi access points, and cell towers all provide time-stamped location information. Certain types of data don’t reside on a device, but SMS and MMS (text messages) data is physically stored on the phone.

The contents of a text are important, but other metadata contained in a message include the recipient’s phone number and send time. When leveraging text message data, it is also important to look at the other actions taking place on a smartphone around the same time. When was the text message app opened, when was the phone locked, when was a phone call received immediately after a message was sent. ESI recovered from mobile devices is relevant, unique, and incredibly compelling. It can change the course of litigation or an investigation.

Operating Within The Rules

As technology has evolved, so have the rules around ESI. The Federal Rules of Evidence (FRE) 902(13) and 902(14) came into effect in 2018. FRE 902(13) and (14) will allow parties to authenticate certain ESI, including GPS data, cell phone photos, and text messages, without needing to offer any testimony as to foundation. 

FRE 902(13) covers records “generated by an electronic process or system that produces an accurate result,” such as a system registry report showing that a device was connected to a computer or how smartphone software obtains GPS coordinates.

FRE 902(14) establishes that electronic data recovered “by a process of identification” is to be self-authenticating, thereby not routinely necessitating the trial testimony of a forensic or technical expert where best practices are employed.

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Smartphone Data Don’t Lie

In the first few weeks of 2020, Senator Richard Burr of North Carolina, chairman of the Senate intelligence committee, received non-public briefings on the impending COVID-19 virus. From late January to mid-February, Burr and his wife sold between around $628,000 and $1.7m worth of stocks, including those in the hospitality industry, in more than 30 separate transactions in late January and mid-February. These actions may have violated the Stock Act of 2012, which made it illegal for lawmakers to use inside information for financial benefit.

Three months later, the FBI seized Burr’s Senate issued cell phone with a warrant signed off at the highest levels of the Justice Department. This was part of a DOJ probe to collect ESI on his phone related to the sale of stocks near the time of non-public Coronavirus briefings. Burr’s phone potentially contains crucial information related to his stock trades, including calendar events, phone logs, third-party app data, and text messages.

Mobile Data Is Volatile

Collect and preserve smartphone data before it disappears. Period. Data on phones is continuously syncing with cloud-based platforms, such as emails, documents, and photos. When powered on, many smartphones will automatically delete and overwrite information. Phones also have default settings for text messages that automatically remove them from the device. 

An issue with unintended consequences that arises is determining what data to collect and from which custodians’ devices. Weeks and months can be spent with back and forth conversations and negotiations on the scope of data. In the meantime, data on phone devices are automatically deleted, inadvertently destroyed, or even overwritten remotely. If there’s the potential that data is needed from a phone, isolate the device and preserve the data as possible. Data has a way of ‘disappearing.’

Know What You’re Working With

There is a massive amount of data contained on a smartphone. This means there is a risk that the data is possibly removed or destroyed. The key is to know what is available and how to obtain it quickly. If the information on a phone is potentially relevant evidence, find a way to collect it. If there’s the possibility that the data could be compromised, act quickly to preserve it. If there are questions or assistance is needed, we’re here to help.