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.

Legal Treatment of Text Messages

Under Federal Rule of Civil Procedure 34, “electronically stored information” (ESI) is discoverable if it is “stored in any medium” from which it can be obtained “either directly or, if necessary, after translation … into a reasonably usable form.” To the extent that text messages are used by employees and retained in the ordinary course of business, they may, like email, constitute discoverable ESI.

On the other hand, Federal Rule of Civil Procedure 26 protects a party from being forced to produce electronically stored information from sources that that are “not reasonably accessible because of undue burden or cost.” There has been little explicit guidance from the courts on the degree to which this rule may cabin requests for text message data, which rarely is retained long-term and may not be addressed by company retention policies. But in other ESI contexts, they have been willing to craft novel approaches to balance discovery rights with burden and cost concerns rather than preclude discovery entirely. For example, although the default rule is that requests for discovery from e-mail backup tapes impose an undue burden, some courts have been willing to allow restoration of a limited set of backup tapes at shared or shifted cost where e-mails from the relevant period have not been retained. Similarly, one court resolved a motion to compel inspection of a computer hard drive by allowing restricted access to the drive by a forensic expert, at the expense of the requesting party.

Another thorny issue is raised where text messaging data is held by a third party. The federal Stored Communications Act of 1986, which generally prohibits (with exceptions) service providers from disclosing the contents of electronic communications in their storage, has been invoked to quash subpoenas to communications providers for text messages. At least one federal court has circumvented the SCA by holding that a defendant’s text messages stored by a third-party provider were subject to a simple document request to the defendant itself. The court noted that Rule 34 requests may target documents in the “control” of a party, and found the requisite control because, among other things, the defendant had authority under the terms of its service contract to block disclosure of the messages. The court accommodated the defendant’s privacy concerns by requiring that the text messages be produced to a magistrate judge for in camera review, rather than to the party itself.

Best Practices: Have a Policy and Develop a Plan

The legal uncertainty regarding the use of text messaging data in discovery makes managing the risks associated with text message usage a challenge. Some organizations have banned employees from conducting business via text message or using company devices for any kind of texting. But given the omnipresence of texting—especially among the generation now entering the workforce—such bans may be impractical.

Develop policies and procedures. Develop policies and procedures that ensure the organization and its personnel control risk and comply with organizational needs. Policies and procedures must consider the use of text messaging in the context of the organization’s business and its compliance and supervisory programs. Similarly, an organization that allows its employees to conduct business through text messaging should establish a routine retention policy (which may include a policy that text messages need not be preserved at all). Each policy should clearly identify the individual employees, teams or groups authorized to utilize text message services to conduct business.

Ensure proper training. As with all electronic communication policies, clear management directives and appropriate employee training are essential. Employees must understand the risks presented by misuse of this technology, as well as the benefits of appropriate use.

Enforce texting policies. Organizations must be vigilant and consistent about enforcing text messaging policies, and ensure that all relevant departments are kept apprised of enforcement developments and are involved in the effort. A non- or inconsistently-enforced policy can be worse than no policy at all.

Anticipate discovery concerns. Advance planning can mitigate the risks that arise in preserving and producing text messaging data. Counsel should institute a plan for collecting relevant text message data, and ensure that litigation hold letters specifically identify text messages on company-issued and personal devices as among the categories of documents and data to be retained, both to ensure that the clearest possible instruction is given and to document compliance with preservation obligations. Counsel also should understand the terms of the company’s contract with any third-party provider that stores text communications, and the potential discovery consequences.