Skip to content

Text Messages Subject to eDiscovery

by on February 17, 2010


Companies still trying to cope with how long they should keep their emails in storage to meet compliance demands are facing another noisome problem. What should they do about text messages sent and received on phones they issue their employees?

The classic case of text messages obtained through electronic discovery playing a pivotal role in a lawsuit is the conviction on perjury charges of Detroit’s mayor Kwame Kilpatrick. Ironically, it was a city directive re-authorized by the mayor’s administration during his first term in office that opened the door for obtaining the text messages of city employees through eDiscovery. That directive required that all electronic communication on city equipment be “used in an honest, ethical, and legal manner” and warned city workers that such communication “is not considered to be personal or private.”

At present, there doesn’t appear to be a lot of case law addressing the issue of storing text messages. There was a lawsuit last fall that appeared on the radar screen, though. In a Florida court case, Southeastern Mechanical Services, Inc. v. Brody, a judge sanctioned the defendants for deleting text messages from their Blackberries after he ordered the devices be turned over to forensic experts in the case.

The lesson businesses should learn from the Florida case is a simple one, according to electronic evidence expert Benjamin Wright:

“As a matter of policy, an enterprise is wise to preserve the business text and instant messages of its employees—especially executives, managers and professionals—just as it does email.  A text message can be legal evidence just as an email can be.”

In an earlier blog post, Mr. Wright also talked about social media in the age of eDiscovery:

“Eventually, corporations will come to believe they are wise to store all IM records centrally. (The same can be said for Twitter tweets and social networking messages, to the extent they are used to transact business.) 

When those records are demanded as part of eDiscovery (or as part of an internal fraud investigation), an enterprise prefers to sift through centrally-managed records than to search for local records on individual PCs.”

Leave a Comment

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

%d bloggers like this: