Do Not LOL—Text-Messages are a Serious Matter When It Comes to E-Discovery
Owen Praskievicz, Esq.
Schwartz Semerdjian Ballard & Cauley LLP
The fact that text-messaging is one of the leading methods of communication in today’s society should come as no surprise to litigators, young or old. Everywhere one looks, at work or home, the world of poor grammar and indecipherable acronyms is pervasive. No office, deposition, or court room is safe from a lurking emoticon.
Such is the context for one of the more recent battlegrounds of e-discovery—text-messaging is so prevalent that preserving and producing texts has become an essential flashpoint in litigation. Because of this, no company’s electronically stored information (“ESI”) retention policy is adequate if it does not account for employees’ mobile-devices, just as no litigation-hold letter can pass muster without demanding for the preservation of text-messages.
As courts display a greater aptitude for the importance of text-messaging and an increasing proclivity toward sanctions for the loss of texts, no attorney should LOL at the idea that texts are now on par with emails when it comes to e-discovery. This article highlights the intricacies of text message discovery, the recent trend for issuing sanctions, and ways to mitigate the risks involved.
Texting: What’s the Big Deal?
At the heart of some of the more surprising stories to come to light in the past few years is often an inadvisable text from a careless source. From Tiger Woods’ sexting misadventures to New Jersey Governor Chris Christie’s bridge construction policies, texts offer an unfiltered window into people’s habits and thoughts unlike any other source. In litigation, there is sometimes no greater tool—or minefield—for unraveling a case than a party’s mobile-device.
Most litigators probably understand that a witness’s texting history can break open a case, providing insight into a witness’s contemporaneous thoughts or intentions on a wide range of issues relevant to the litigation. What many attorneys don’t realize, however, is that texts are not always easily recoverable.
Many people are surprised to discover that many mobile phone are programmed to automatically delete texts after a certain period of time to free up space. Phone users are just as likely to manually delete texts. Although some forensic experts can recover texts, doing so is more difficult (and expensive) than recovery of emails from computers. Simply put, text messages are not saved in the same manner as emails or other ESI, and service providers often only preserve time stamps and the recipient. In other words, texts can easily be lost, deleted, or overlooked.
To avoid missing out on this key evidence, attorneys should plan on targeting text-messages just as they would any other ESI.
Pre-Litigation: Assure Your Client’s Maintain a Broad Retention Policy for Text Messages
For business litigators, in order to manage a client’s preservation of text messages, it is important to evaluate the extent to which the company’s employees use text messages as a business communication tool. If employees use text messages for any business purpose, the company’s retention policy must address these text messages. For example, the company’s policy may prohibit any texting from a company-owned mobile device, or it may require retention similar to that for email. This is especially important in organizations that use a “bring your own device” or BYOD policy, where spelling out what custodians must preserve is critical. Of course, even companies with no BYOD policy must assure they have a policy in place regarding the use of personal devices for work purposes.
Initiating Discovery: Litigation Hold-Letters Must Account for Text-Messaging
By now, San Diego litigants generally understand California’s Electronic Discovery Act (Code of Civil Procedure section 2031.030, et seq.) and the Federal Rules it mirrors. Litigants should be just as comfortable in the application of these statutes to text-messaging. For example, Code of Civil Procedure section 2031.030(a)(2) provides that a party must specifically request the production of ESI and to specify what categories of information it is seeking when requesting production of ESI. Text-messaging should be on every attorney’s checklist for such requests.
Likewise, when issuing a litigation hold letter requesting the preservation of ESI, it is critical to include text messages as part of the hold. For recipients of such a hold letter, companies and their counsel must have a plan to preserve all potentially relevant text messages to avoid spoliation sanctions.
But of course, requesting the information may not always be enough. Both section 2031.210and Rule 26 of the Federal Rules of Civil Procedure provide that a party “need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(b). If text messages qualify as not being “reasonably accessible because of undue burden or cost,” the party seeking them in discovery may be required to establish “good cause” and share in the cost of retrieval.
To establish “good cause,” counsel should establish through interrogatories the witness’s access to and/or ownership of a mobile device, and follow up this information in a deposition targeting the persons to whom text messages were sent or received. While counsel can only speculate what the text messages may actually say, establishing the existence and relevancy of prior text messages can help persuade a Court to permit their discovery.
Sanctions: Courts Are More Than Willing to Punish Parties the Spoliation of Text Messages
Several recent cases reveal just how important the preservation of texts messages can be. In Calderon v. Corporacion Puertorrique a de Salud, 2014 WL 171599 at *3 (D.P.R. Jan. 16, 2014), for example, defendants in a sexual harassment suit sought to exclude all messages between plaintiff and an alleged harasser because of plaintiff’s “selective” failure to preserve more than 38 messages. In response, the court issued an adverse inference sanction because the plaintiff had violated his duty to preserve text-messages. Id.
The case presents a bad-day-scenario for any plaintiff’s counsel. In Calderon, the plaintiff admitted deleting text-messages on his phone, which led to defendants filing a motion in limine seeking the exclusion of all messages. Id. at *1. Before the motion was heard, however, defendants received the plaintiff’s phone and text messaging records from the plaintiff’s service provider, which revealed that the plaintiff had deleted at least 38 messages it had received from the alleged harasser.
The plaintiff defended his actions by saying the messages weren’t relevant. Id. But the Court noted that the messages were deleted after plaintiff had contacted his attorney about the lawsuit. Id. at *3. Coupled with the fact that the plaintiff forwarded other messages from the alleged harasser to his phone, the court had no trouble concluding the messages were relevant. Id. Significantly, the court added that the plaintiff’s failure to preserve “severely” prejudiced the defendants by precluding defendants’ complete review and presentation of all relevant conversations and pictures sent between plaintiff and his harasser. Id. Thus, sanctions were appropriate. Id.
Other cases are also illustrative. In one case, the Seventh Circuit upheld a District Court’s order sanctioning and admonishing a defendants’ poor text-messaging retention policy:
Defendants' arguments to justify their failure were as dishonest and ridiculous as those offered to justify other failures. Text messages were not relevant, they said, though they had instructed employees to use text messages for business purposes. We didn't know text messages were covered by the litigation hold or the discovery requests, they said, yet the scope of the requests was plainly broad enough, and defendants themselves were seeking text messages from plaintiffs. Yes, we failed to disable the auto-delete function on company-owned cell phones, but that would have been too burdensome. As Judge Herndon explained, if defendants thought the hold would be too burdensome, they had an obligation to raise the problem with the court. They were not entitled to make a unilateral decision that ensured the destruction of relevant documents.
In re Petition of Boehringer Ingelheim Pharm., Inc., & Boehringer Ingelheim Int'l GmbH, in Pradaxa (Dabigatran Etexilate) Products Liab. Litig., 745 F.3d 216, 225 (7th Cir. 2014).
In Christou v. Beatport, 2013 WL 248058 at *14 (D. Colo. Jan. 23, 2013), a nightclub owner argued that he did not need to preserve messages on his phone despite receiving a litigation hold letter, that he did not need to turn over any such texts, and that he should not be sanctioned despite losing his phone because the texts were not relevant to his hiring practices of DJs. The court held that, although the negligent loss of the phone and its evidence did not warrant an undue inference instruction, it allowed the plaintiffs to introduce evidence at trial that the defendant had failed to preserve the texts and to argue that the jury should draw an adverse inference.
Today, text messages are as much a part of business and personal communication as emails. As the younger generation takes its place in the business and legal community, this fact will only grow. As such, the faster an attorney gets on board with the techniques and strategies for discovering and preserving text-messages, the more equipped he or she will be as a case develops. Likewise, every attorney and their client should take the threat of sanctions seriously and put in place policies to preserve text messages long before sanctions ever become an issue.