Text messages in electronic discovery are more important than ever in almost all civil litigations. Even more so than email, texts tend to be casual and candid in content, and may not be as carefully considered prior to transmission. This quality makes text messages a particularly prime source of potential relevant evidence in many cases and controversies. However, texts on personal smartphones can present two unique challenges:
- Text messages are easy to delete by the user. Most cell phone carriers only save the content of text messages for 2-3 days, and carriers typically assert the federal Stored Communications Act as a defense to compliance with a subpoena. (Metadata may still be available, however.)
- Parties may allege privacy concerns when objecting to the request to produce a smartphone when it is used for both personal and business use (sometimes called “BYOD” situations—Bring Your Own Device to work.)
These challenges are not insurmountable. One of the most important things plaintiff’s counsel can do is to explicitly delineate in litigation hold demand letters the text messages of parties, witnesses and custodians. At the very least, such request can set the foundation for spoliation sanctions—including adverse inference instructions, monetary fines and even dismissal of counter-claims—if the requested texts are subsequently deleted and unrecoverable.
What Cases in the Past Year Dealt with Text Message Spoliation?
- First Financial Security, Inc. v. Freedom Equity Group, LLC, Case No. 15-cv-1893-HRL, (D. California, October 7, 2016.) In a business tort case, Plaintiff brought a motion for discovery sanction, charging that Defendant intentionally failed to produce text messages. Defendant countered that the texts were “innocently deleted” by “people who did not understand their discovery obligations.” The court held Plaintiff proved spoliation under FRCP 37(e), as Defendant had a duty to preserve the texts but took no reasonable steps to do so, resulting in their permanent deletion. The court further found that Defendant acted with the intent to deprive Plaintiff of the text messages, justifying sanction under FRCP 37(e). The court ordered an adverse inference instruction be made regarding the deletion of the texts as spoliation sanction.
- First Financial Security, Inc. v. Lee et. al., Case No. 14-1843 (D. Minn. Mar. 8, 2016). After requesting text messages and emails as part of the initial discovery requests, Defendants produced nothing. The court then issued an order to produce the electronic data. Defendants failed to do so again, and attempted to blame the failure on their attorney and their poor English skills. The court did not believe the loss of the text messages was accidental and concluded that Defendants were deliberately trying to withhold evidence. Accordingly, the court affirmed the sanctions order which included an adverse inference instruction.
- Benefield v. MStreet Entertainment, LLC et. al., Case No. 13-1000 (M.D. Tenn., Feb. 1, 2016). In an employment lawsuit alleging harassment and unlawful retaliation, Plaintiff sent a litigation demand within five days of filing the lawsuit requesting all electronic communications, including texts, be preserved. A few weeks later, Defendants claimed they were “unable” to preserve the texts and claimed a policy for preservation of text messages was unduly burdensome and invasive. The court disagreed and noted Defendants were notified very early in the case that the texts were required to be preserved. The court also rejected the notion that privacy concerns outweighed the importance of the discovery of the messages in this case. The court ordered an adverse inference instruction as sanction. (In a July 1, 2016 order in the same case, the court ruled against Defendants’ motion for summary judgment, holding that the inference of spoliation, in part, precluded summary judgment on the retaliation claim.)
- Shaffer v. Gaither, 5:14-cv-00106-MOC-DSC. (WD North Carolina, December 16, 2016.) The court held the Plaintiff’s changing the name of the Defendant, her supervisor, to “Walter Skinner” in her text messages produced from her phone did not rise to the level of spoliation as a pretrial issue. The court held that the alterations could be offered to the jury for an issue of weight of the evidence, but not admissibility. However, the court did reserve the issue of spoliation or a modified spoliation instruction after all evidence has been heard at trial. (Worth the read for the footnote alone—the X Files reference was not lost on the court.)
- Doers v. Lincare, Inc., Case No. 8:14-cv-3168-T-30AEP. (Dist. Court, MD Florida 2016.) Court denied Defendant’s Motion in Limine to Exclude Incomplete Text Message Exchange. Defendant alleged spoliation of a text message exchange, claiming Plaintiff deleted other texts which were sent on the same day as an exchange Plaintiff listed on her trial exhibit list. The court found Defendant failed to move to compel Plaintiff to produce the phone records during discovery, particularly because it was on notice that Plaintiff planned to use the text exchanged. Plaintiff had questioned a witness regarding the texts and referred to them in a response to a motion for Summary Judgment. Therefore, the court denied the Motion in Limine and suggested Defendant question Plaintiff regarding the possible deleted text messages at trial.
Questions About Requesting Text Messages in Discovery?
The best way to avoid potential deletions of text messages and other relevant electronic evidence is to have a comprehensive plan regarding litigation holds and discovery requests as soon as possible when litigation is foreseeable. For questions regarding electronic discovery and texting, reach out to the plaintiff eDiscovery experts at ILS by calling us at (949) 272-0136.