Text Messaging Harvesting In E-Discovery: Easier Said Than Done

January 27, 2014

text message cell phoneTen years ago, a person might send a text message once in awhile, usually for something like advising a friend that he or she was running late.

How things have changed.

In very little time, text messaging has exploded in popularity.  By some informal estimates, it is now the preferred means of communicating. Statistics seems to bear this out; according to a 2013 survey by the Pew Research Center, 91 percent of American adults own a cell phone, and at least 94 percent of cell-phone users between the ages of 18 and 49 send text messages.

Texting has become so popular that it is now being used for professional communication, not just informal, personal messages. (Exhibit A: German Chancellor Angela Merkel). This means that text messages have joined emails, formal written correspondence, memos and other printed records as material that litigators want to review during discovery.

However, gathering text messages is easier in theory than in practice. For example, last year, the maker of Pradaxa, a prescription blood thinner, was sanctioned $931,500 for not preserving and producing its employees’ text messages, among other things, during the discovery phase of products liability litigation.

It seems that text messages are among the more slippery forms of communication for several reasons:

  • Not all employers understand that text messages are among the communications that will be requested during discovery.
  • Even if an employer understands that text messages are important, individual employees often do not. If there is a policy regarding text message preservation, it is not always followed.
  • Technology is changing rapidly. If a given platform or device is not yet outdated, chances are it is on its way there. This means it can be hard to retrieve text message material.

As those three general observations demonstrate, some awareness-building about the importance of text messages is important. That may just be a question of time. However, it also helps to have the right instruments at your disposal. Being properly equipped to fully harvest material that could be relevant to litigation is essential.

For more insights into the legality of preserving text messages, read this interesting post from Practical Law Company: “OMG! Failing To Preserve Text Messages Is Sanctionable