Practical Law Feature Article: OMG! Failing to Preserve Text Messages Is Sanctionable

January 23, 2014

Practical Law logo newA 2013 survey shows that nearly everyone sends and receives text messages. The popularity and widespread use of texting among adults in business contexts has implications for individuals and companies facing potential and pending litigation. For example, a party who fails to preserve and produce responsive text messages in the discovery phase of litigation may be sanctioned for spoliation of evidence.

Recent court decisions have articulated parties’ obligations when it comes to text messages:

  • A party has a duty to preserve written communications, including text messages, related to the litigation.
  • A company must explain to its employees that the litigation hold includes text messages.
  • Failure to stop the automated deletion of employee text messages on company-issued phones is sanctionable.

The Feature Article, linked below, discusses the popularity of texting, gives recent examples of how the production of text messages has significantly affected investigations involving public figures and cites cases in which a party’s failure to preserve and produce text messages has resulted in sanctions.  The Feature also links to several Practical Law resources to help companies and their counsel fulfil their duty to preserve potentially relevant text messages.

Visit Practical Law to see the full Feature Article.