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Text Messages and Plaintiff’s eDiscovery

Posted on January 29th, 2015

What Does Recent Case Law Say About Text Message Preservation?

Text messages can present particular challenges in eDiscovery. To avoid the common pitfalls, the plaintiff’s bar needs to know both how to properly preserve its clients’ text messages and how to ensure defense counsel produces everything plaintiffs are entitled to receive. Because text messages are typically stored only on individual smartphones or tablet devices, and such devices routinely auto-delete text messages, plaintiff’s attorneys in civil litigation should consider taking affirmative steps to back-up their clients’ text messages on a separate hard drive or cloud storage and cease all auto-deletion practices to avoid allegations of spoliation.

When seeking text messages from defendants, plaintiff’s attorneys should consider promptly requesting that defendants institute a litigation hold to preserve all relevant documents and suspend any auto-deletion practices (expressly including text messages in that request). It is surprising how often defense counsel neglects to take this critical step, and a reminder from plaintiff’s counsel can help avoid the loss of critical data (which often times even a computer forensic expert cannot retrieve). Plaintiff’s attorneys must also be mindful to ask questions regarding text message usage during depositions and to follow-up with defense counsel if defense productions do not contain expected text messages.

And of course, Plaintiff’s attorneys must stay abreast of the latest case law trends in this quickly evolving area of the law.  Below is a lists of important cases in this area in recent years. Read more in-depth treatment of each case and to search our archive of hundreds of other eDiscovery case summaries.

What Recent Court Opinions Discuss Text Messages in Electronic Discovery?

  • Federico, et al. v. Lincoln Military Housing, LLC et al., Case No. 2:12-cv-80 (E.D. VA Dec. 31, 2014). In this class action case regarding failure to maintain rental properties, the court held that Plaintiffs did not have a duty to take affirmative steps to preserve their text messages. Accordingly, Plaintiffs had not spoliated lost text messages but rather had lost them as the result of routine, good faith operation of their mobile phones.
  • Calderon v. Corporacion Puertorrique A De Salud, 2014 WL 171599 (D. Puerto Rico Jan.16, 2014). A third party communications provider produced text message metadata that suggested Plaintiff had deleted certain text messages after litigation commenced. The court entered an adverse inference instruction against Plaintiff, reasoning that since Plaintiff produced some, but not all texts from the relevant time period, the deleted text messages likely contained unfavorable information.
  • PTSI, Inc. v. Haley et al., 2013 PA Super 130 (2013). Defendants admitted to deleting text messages after the court entered a preservation order. The Pennsylvania Supreme Court’s majority opinion affirmed the trial court’s order, agreeing that the trial court had not abused its discretion in finding that Defendants had not acted in bad faith and that sanctions were not warranted given the potential relevance of the lost text messages to the relatively small amount in controversy. The concurring opinion, however, noted that Defendants had not only deleted texts on their phones, but also on the computer back-up of the messages, which the concurring opinion noted found suspicious although not enough under an abuse of discretion standard to overturn the trial court’s order.
  • Christou v. Beatport, LLC, 849 F. Supp. 2d 1055 (D. Colo. 2013). After institution of a litigation hold, Defendant lost his iPhone and all the text messages on the device. Although Defendant claimed that he did not use his personal phone for work and that, therefore, he had lost no relevant messages, the court entered an adverse inference instruction as a sanction for his negligent spoliation.
  • Wayne Cotton v. Costco Wholesale Corp., 12-2731 (D. Kan. Jul. 24, 2013). The court held that Costco’s Bring Your Own Device policy did not make employees’ personal cell phone text messages discoverable given that the employer had not issued the phones, the employees did not use them for work purposes, and the employer did not have any right to obtain the text messages. Contrast this decision with In Re Pradaxa (Dabigatran Etexilate) Product Liability Litigation, (S.D. Ill. December 9, 2013), where the court sanctioned the employer for failing to preserve text messages on both employer-issued and private cell phones.

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