Text messages are discoverable

The E-Discovery Beat blog takes a look at a recent case which highlights the importance of preserving text message evidence.

Mike Hamilton, J.D., writes that text messages are becoming as important as other forms of communication and there is an expectation they should be preserved as potentially relevant evidence.

In Regas Christou v. Beatport, nightclub owner Christou sued a competitor and others over threats which could lead to a monopoly over online dance music sales. The defendants told employees to preserve potentially relevant data including text messages, yet no SMS’ were handed over in response to the plaintiff’s discovery request. A few months later, the defendant revealed that he had lost his iPhone and all its text messages.

The defendant argued against a subsequent motion filed for spoliation sanctions, saying there were no relevant text messages on the lost phone. The court rejected this argument because no proof was provided that the text messages had been reviewed before the phone was lost. However, the court didn’t find that the spoliation amounted to anything more than negligence and so decided not to grant an adverse inference instruction, instead allowing the plaintiff to present the argument to a jury at trial.

Hamilton drew three key lessons from this case:-

1. Duty to preserve potentially relevant data – it’s not just relevant data that should be preserved. In Regas Christou v. Beatport, the defendants couldn’t prove they had preserved or analysed the text messages before the phone was lost.
2. Documentation – a legal team should document all decisions that are made and the reasons for it. Even if they had reviewed the text messages before the phone was lost, there was no record to prove this. Documenting discovery decisions can be an almost-impossible task but there are software tools that can help by automatically recording the review process.
3. Software integration/mobile collection – software collection tools are the best way to collect and search mobile data in a defensible way.