The 21st Century Water Cooler: Discovery and Text Messages

Butler Snow LLP

Text messages, once the exclusive domain of teenagers and college students, are increasingly used in business communications. These communications are, unsurprisingly, also discoverable in a wide variety of litigation contexts, from employment lawsuits to products liability actions. Most importantly, courts, such as the Eastern District of Louisiana in U.S. v. Mix (United States v. Mix, 2013 U.S. Dist. LEXIS 146848)and the District of Colorado in Christou v. Beatport, LLC (Christou v. Beatport, LLC, 2013 U.S. Dist. LEXIS 9034), have issued sanctions against litigants who have failed to preserve text messages.

As a first step in managing the risk of text messages in a company, it is important to evaluate the extent to which employees use text messages as a business communication tool. This is particularly important in organizations that have adopted a “bring your own device” approach to mobile device management, as the company must enumerate its rights with regard to company data on the personal device. Even companies with no “bring your own device” policy must have policies in place to address the use of personal devices for work purposes.

If employees are using text messages for any business purpose, the company’s document retention policy must address text messages. The company’s policy may prohibit text messaging using company-owned mobile devices, or it may provide for retention similar to that for email. In any event, if the company is aware of any text messaging among employees – or the potential for such communication – the document retention policy should address text messages.

What if the company is subject to a litigation hold? Outside counsel and the company’s e-discovery vendor need to be aware that text messages are used for business purposes in internal and/or external communications. As with any other data subject to a litigation hold, a plan must be in place to preserve the potentially relevant text messages to avoid spoliation sanctions. Depending on the company, it may be prudent to regularly back up key employees’ devices, including text messages, even when those employees are not subject to a litigation hold.

The proliferation of text messages in business communication encourages a thoughtful approach to their use and preservation for litigation purposes. A regular survey of employees’ use of text messages and other “non-standard” forms of communication should be a part of every company’s electronic device policy revision. Moreover, when discussing a litigation hold with key employees, counsel must determine whether those employees are utilizing text messages or other unexpected forms of communication that may implicate the litigation hold. If your employees are using text messages as their “water cooler” or otherwise, have a preservation plan in place.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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