Don’t Let Phones Outsmart You in eDiscovery: How to Handle Text Messages

Don’t Let Phones Outsmart You in eDiscovery: How to Handle Text Messages

Every day, business is conducted using text messages: your employees, from the rank and file up through the C-suite, are communicating about compliance issues, addressing risks, and sharing business-related, and sometimes confidential, information over their phones. These messages can be a hotbed of information for eDiscovery—if you take the right steps to preserve, collect, review, and produce them.

The problem is that text message data, unlike email, generally isn’t stored in a centralized, searchable format. It may not exist at all on company property, if your employees are using personal devices under a BYOD policy. Even worse, sometimes text messages are scheduled to autodelete from devices after a period of time. What’s a company to do?

Here’s what you need to know to manage text messages for eDiscovery.

Text messages are probably within your company’s control.

Generally, a document must be within the possession or at least “control” of a party to be discoverable. Courts have found that companies have sufficient control when they issue handheld mobile devices to their employees for work; some have also extended this control to personal devices when employees use their own devices to send text messages for business purposes. While there is no definitive rule, any text message any employee sends for business purposes could potentially be discoverable.

The failure to preserve text messages can lead to serious penalties.

 Courts have sanctioned parties for failing to preserve text messages. For example, in In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation, the defendant companies directed their employees to communicate via text messages on both personal and company-issued cell phones. In litigation, the plaintiffs requested the production of text messages. However, the defendants failed to extend their litigation hold to cover text messages until four months after receiving that discovery request and did not actively intervene to stop automated deletions of employee text messages. The court fined the defendants close to $1 million, in part for this “egregious” failure to preserve text messages.

 The collection of text messages can be tricky.

Some people incorrectly assume that they can subpoena complete text message transcripts from phone carriers. While they may be able to obtain records of the date, time, and size of messages by subpoena, phone carriers generally don’t store and can’t retrieve the content of individual text messages. Instead, those messages live on individual devices or within apps. If a device isn’t backed up, messages can be lost forever.

To avoid this fate, be sure to incorporate questions about text messages in your initial custodian interviews to ensure that your preservation process captures all potentially responsive texts. You should also check whether your organization’s document retention policy covers text messages and follow up to ensure compliance.

You have options when it comes to producing text messages.

 In cases where the volume of text messages is low, parties have successfully produced simple screenshots of relevant text exchanges. In complex cases involving many texts, more advanced extraction tools are needed to capture all relevant messages and pertinent metadata. Consult with your eDiscovery specialist to determine the best method for your case.

Here’s what you should do next.

Prepare now for potential litigation by learning how your employees are using text messages in their work and how your organization is preserving text message data on business and personal phones. If you don’t already have a plan in place for preserving, collecting, and reviewing text messages for eDiscovery, now is the time to establish one.

To learn more about how iDiscover can assist with discovery involving text messages, please get in touch.

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