The Legal Cost of Deleted Text Messages

In litigation, a deleted text message could cost your client the case.

It could happen when you least expect it, even before opposing counsel demands that you preserve any evidence. And when your client is a company, it can be like herding cats to notify all the employees to save their text messages.

With courts handing out monetary and even terminating sanctions for deleted text messages, it pays to have an eDiscovery plan before a lawsuit happens. Here are some cases and studies to consider:

Text Legal

RingCentral surveyed nearly three hundred workers and found that 80 percent of them use texting for business. It is the preferred mode of communication.

Texting is even more popular than social media apps, like instant messaging. More than half of the respondents said they send up to 20 texts a day -- more than enough to create a contract, transmit confidential information, or otherwise implicate legal issues.

Even so, many companies still have not taken steps to address the problem. Courts are admonishing and sanctioning litigants for not preserving text messages.

"Which to me says that there are some corporations that still do not necessarily expand their collections efforts to the world of text," said Melinda Levitt, a partner at Foley & Lardner.

Upfront Policy

Corporate counsel advise companies to tell employees upfront that their business communications are subject to collection, such as their cell phones. It puts them on notice and protects the company as well.

The duty to preserve evidence can start as soon as counsel becomes aware of an issue, but the consequences of failing to preserve increase with litigation. For example, the Delaware Supreme Court affirmed a $7 million eDiscovery sanction against a litigant this year for deleting thousands of email and other misconduct.

Gibson, Dunn & Crutcher cited many cases of eDiscovery sanctions, including text messages, in a recent update. Gareth Evans, a partner at the firm, said encrypted messages are another issue for in-house counsel.

"The newer issue is encrypted messaging apps and particularly those where the message can go away or is deleted after it's read," he told Inside Counsel.

He said employers have to be responsible for the technology at work, and have a policy that explains how the company will manage it.

Related Resources:

• Bringing eDiscovery In-house: How Can You Be Successful? (FindLaw's Law Technology)
• 5 Ways eDiscovery Will Change Things in 2017 (FindLaw's Technologist)
• eDiscovery Mistake Leads to 'Nightmare' for Wells Fargo Lawyer (FindLaw's In House)