May 4, 2022
Tips For Handling Text Messages in Discovery
Non-email electronic forms of communication have been with us for quite some time. The text message was first invented in 1992. AOL Instant Messenger was released in 1997, and Blackberry Messenger followed in 2005. The release of the iPhone in 2007, coupled with the rise of cheaper (or free) text messaging greatly increased the adoption of these types of communications. Since that time, adoption and usage of text and instant messaging have increased exponentially. In some cases (and particularly among Millennials and members of Generation Z), texting and instant messaging have come to augment or even replace email as the primary method of communication.
More recently, the rise of remote work in the face of the pandemic has made text messages (along with instant messages, direct messages, and every other type of electronic communication) a ubiquitous feature of business communication. Text messaging already posed significant challenges in the litigation context; its increase usage, combined with the pandemic and its implications for how individuals work and communicate, has brought those issues to a fever pitch.
Are Text Messages Discoverable?
Like all new electronically stored information (“ESI”), text and instant messaging have resulted in unique challenges in the discovery context. Most jurisdictions have ruled that these types of communications are discoverable. The Court of Chancery has made it clear in a series of decisions that not only are text messages discoverable, but that they often have heightened importance. The Court in Kan-Di-Ki, LLC v. Suer, C.A. No. 7937-VCP (Del. Ch. July 22, 2015) found that text messages were subject to discovery when it ruled that a party spoliated evidence when he lost his cell phone. The Court reiterated its position in In Re Oxbow Carbon LLC Unitholder Litigation, C.A. No. 12447-VCL (consol.) (Del. Ch. June 2, 2017) when it ordered Delaware counsel to oversee the identification and collection of potentially relevant text message data.
Finally, the Court in In re Appraisal of Kate Spade Company, C.A. No. 2017-0714-AGB (Del. Ch. June 21, 2018) raised a key point regarding the importance of text messages when then Chancellor Bouchard mused whether parties should collect and review potentially relevant text messages as a matter of course.
While this article primarily focuses on text messages, it is important to note that other mobile data, including photos, notes, and instant messages from apps such as WhatsApp and Facebook messenger are also generally discoverable.
Preservation
Text messages are, by definition, ephemeral. Law Insider defines ephemeral data as “information that change rapidly over time and may be lost if not collected immediately (e.g., within days or weeks).”1
There are different degrees of ephemerality; text messages fall on the less ephemeral end, while instant messages sent on Snapchat would be at the extreme end of ephemerality. Regardless, the automatic or accidental deletion of texts is a constant challenge of which lawyers must be aware.
A combination of forced obsolescence and the insatiable need to upgrade to the most recent cell phone pushes individuals to constantly replace their cell phones. Cell phone contracts last two or three years, and often a new contract comes with a new phone. This has led to a culture of disposability surrounding cell phones, thus resulting in more challenges.
Further, iPhone settings make it easy to set text messages to automatically delete after a certain period of time. Users often are not even aware that this setting is even in effect, as it may have been set up when the phone was activated at the local cell phone store or by a company’s IT professionals.
Finally, discovery is typically stayed at the start of litigation, sometimes for months or years. This means that an individual may re
More recently, the rise of remote work in the face of the pandemic has made text messages (along with instant messages, direct messages, and every other type of electronic communication) a ubiquitous feature of business communication. Text messaging already posed significant challenges in the litigation context; its increase usage, combined with the pandemic and its implications for how individuals work and communicate, has brought those issues to a fever pitch.
Are Text Messages Discoverable?
Like all new electronically stored information (“ESI”), text and instant messaging have resulted in unique challenges in the discovery context. Most jurisdictions have ruled that these types of communications are discoverable. The Court of Chancery has made it clear in a series of decisions that not only are text messages discoverable, but that they often have heightened importance. The Court in Kan-Di-Ki, LLC v. Suer, C.A. No. 7937-VCP (Del. Ch. July 22, 2015) found that text messages were subject to discovery when it ruled that a party spoliated evidence when he lost his cell phone. The Court reiterated its position in In Re Oxbow Carbon LLC Unitholder Litigation, C.A. No. 12447-VCL (consol.) (Del. Ch. June 2, 2017) when it ordered Delaware counsel to oversee the identification and collection of potentially relevant text message data.
Finally, the Court in In re Appraisal of Kate Spade Company, C.A. No. 2017-0714-AGB (Del. Ch. June 21, 2018) raised a key point regarding the importance of text messages when then Chancellor Bouchard mused whether parties should collect and review potentially relevant text messages as a matter of course.
While this article primarily focuses on text messages, it is important to note that other mobile data, including photos, notes, and instant messages from apps such as WhatsApp and Facebook messenger are also generally discoverable.
Preservation
Text messages are, by definition, ephemeral. Law Insider defines ephemeral data as “information that change rapidly over time and may be lost if not collected immediately (e.g., within days or weeks).”1
There are different degrees of ephemerality; text messages fall on the less ephemeral end, while instant messages sent on Snapchat would be at the extreme end of ephemerality. Regardless, the automatic or accidental deletion of texts is a constant challenge of which lawyers must be aware.
A combination of forced obsolescence and the insatiable need to upgrade to the most recent cell phone pushes individuals to constantly replace their cell phones. Cell phone contracts last two or three years, and often a new contract comes with a new phone. This has led to a culture of disposability surrounding cell phones, thus resulting in more challenges.
Further, iPhone settings make it easy to set text messages to automatically delete after a certain period of time. Users often are not even aware that this setting is even in effect, as it may have been set up when the phone was activated at the local cell phone store or by a company’s IT professionals.
Finally, discovery is typically stayed at the start of litigation, sometimes for months or years. This means that an individual may re