Text Messaging Data in eDiscovery


Text messages have been in the news a lot recently from deleted text messages in the January 6th hearings to the inadvertent release of text messages by Alex Jones' attorneys during his trial.

Texting has become a way of life for most Americans in today's world as over 1/3 would rather text than talk on the phone.  In 2015, research showed that 80% of professionals conducted business communications through texts.

Text messages can become relevant evidence to be retrieved, preserved and searched although it isn't always an easy task.  

Since December 2006, the Federal Rules of Civil Procedure has demanded the “preservation and disclosure of electronically stored evidence.” Digital communications such as emails and text messages fall squarely under this remit, and as such, enterprises are obligated to keep accurate and exhaustive records.

When it comes to eDiscovery, texts on mobile devices present two unique challenges. First, it's easy for users to delete text messages. Most carriers only save text message content for 2-3 days. Carriers usually assert the Stored Communications Act as a defense to compliance with a summons.

It's also easy for parties to allege privacy concerns. As the lines between our personal and professional lives are blurred, many object to the request to produce a mobile device for the purpose of evidence. This is especially common in situations where employees are required to bring their own devices to work.

Cloudnine has some good Do's and Don'ts about text messages:

DO's

  • Develop policies about business messaging. Some companies may go as far as banning all employees from discussing work affairs over text. Other companies may impose regulations on who and how work messages are sent. If your company permits any kind of text-based business communications, set up retention policies and collection plans. Through the policies, ensure that the data is preserved if needed for litigation.

  • Once your retention policies are established, consistently enforce them. Update your employees on any changes that the policies undergo. Poorly enforced policies are no better (and sometimes worse) than having no policy at all.

  • Train employees on how to appropriately send work texts. Also, inform them of the risks associated with deleting potentially relevant information.

  • Issue litigation holds when anticipating litigation. In the litigation hold letter, remind employees to disable any automated deletion features. Companies should also specify if message preservation is required for company devices, personal devices, or both. 

DON'Ts

  • Rely on screenshots alone as a way to create records. Text messages can be easily manipulated, so screenshots are not enough to validate their authenticity. Find additional means of proof such as witness or expert testimony. As a better alternative, companies can find a discovery solution to produce the evidence through native or near-native files.

  • Rely on phone carriers to preserve the messages. As stated above, carriers will only store the data for short periods of time. Take ownership of your preservation duties by establishing retention policies in advance.

  • Delete messages or conversation histories when anticipating litigation.

  • Manually preserve text messages by copying and pasting them into other sources. Manual efforts include forwarding text messages to email and exporting texts to Excel files. These methods are time-consuming and harder to authenticate in court. 

There are basically three methods to extract the data from a mobile phone: physical, file system and logical acquisition in order of quality. The best one — physical — requires the most time, often much longer than copying a hard drive with far more storage. Physical and file system only produce a big block of binary data that must be broken down into the files and information of interest.

Most law firms will need some help with text messages. Many federal agencies are still trying to catch up on how to deal with it as well. In order to do ensure that you comply with preserving and disclosing text message data, you will need to reach out to a litigation support professional or vendor to get the support you will need for this task. There are many tools and professional who are experienced in performing this type of work. It involves more than just simply taking screen shots of text messages.

There is no reason to ignore electronic discovery which can be found on mobile devices: clearly text messages are electronically stored information within the meaning of any rule. Plus, courts have generally enforced the common eDiscovery obligations in cases involving mobile phones.

Don't risk getting poop emoji on your case when it comes to text messages. Employ the right eDiscovery tools and professionals to assist you in managing this type of data.

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