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Are Text Messages Different than Email for eDiscovery?

Posted on March 18th, 2013

Shortly after the case of Christou v. BEATPORT, LLC, No. 10-cv-02912-RBJ-KMT (D.Co. 2013) was filed on December 1, 2010, plaintiff served a “litigation hold letter” on the defendant. One of the items listed for preservation was text messages from defendant’s iPhone. The defendant was then served with plaintiff electronic discovery requests on May 19, 2011, seeking the text messages referenced in the letter.

In August of 2011, the defendant informed plaintiff that he had lost his iPhone and all the text messages contained within it. Plaintiff filed a motion for sanctions for the spoliation of electronic data evidence, and sought an adverse jury instruction.

The defendant argued against sanctions by claiming he did not use text for work, and that it was “sheer speculation” that the texts contained relevant evidence. The court disagreed, stating that without the text messages, there is no way of knowing whether the evidence would be relevant or not, and there was no indication that defense counsel ever reviewed the messages to determine relevancy.

“Defendants had a duty to preserve…text messages as potential evidence, but they did not do it. These text messages, few as they might have been, should have been preserved…” Id. However, the court believed the defendants that the loss of the phone was accidental and categorized it as negligent. Finding an adverse jury instruction to be too harsh for this situation, the court granted the plaintiff permission to argue at trial that the defense failed to preserve certain evidence, and that the plaintiff could argue whatever inference they hoped the jury would draw.

This case is yet another example of text messages on smartphones being just as relevant for electronic data discovery as email chains and email threads. In today’s world, is there even a difference between a text message and an email? If a difference still exists, it is becoming negligible for eDiscovery purposes.

[eDiscovery Extra: Always use certified mail with a return receipt when issuing a litigation hold letter to ensure its delivery and receipt.]

ILS – Plaintiff eDiscovery Experts

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