Scenario

An organization is sued by a former employee who alleges that she was sexually harassed in the workplace through a series of allegedly offensive and degrading text messages sent by a supervisor. The organization receives a discovery request for text messages sent by the supervisor; however, the supervisor left the company before the lawsuit was filed, and pursuant to company policy, the data on his company device was deleted. The plaintiff’s lawyer has taken the position that the employer should have preserved the device, and now must attempt to recover the deleted text messages from the device or obtain the data from its third-party communications provider. The organization is considering how to respond, and whether it should take steps to rein in future text message communications.

Text Messages: Uncharted Territory in E-Discovery

According to recent studies from the Pew Research Center, 80 percent of US cell phone owners send and receive text messages, and 31 percent of text message users actually prefer texting to phone calls. Given that young adults are by far the most avid users of text messaging, sending or receiving an average of 88 text messages per day, we can expect that personal and business communications more and more will be found in text message form. Yet despite its near-ubiquity, text messaging generally receives little attention during the discovery process. Few courts have explicitly defined the standards for searching for and producing text messages.

As a source of discovery, text messages can be unpredictable. The conventions or “netiquette” that have developed for business email (such as proper use of the subject line, refraining from using all caps, and appropriate signatures) are all but nonexistent with respect to text messaging. And the casual, real-time feel of text messaging, together with the belief that deletion of text messages is irreversible, means that people may be willing to state via text what they would never set down in email. In fact, the proliferation of smart phones and improvements in handheld device forensics means that it is increasingly possible to recover deleted text messages.

via Managing The Risks And Costs Of Text Messaging (Electronic Discovery & Records Management – Tip Of The Month) – Litigation, Mediation & Arbitration – United States.