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.

Lawyer sentenced for instructing client to destroy data

It seems even lawyers have their day in court.

In a timely reminder of the risks involved in destroying electronic evidence, an Australian lawyer has been handed a 12 month suspended sentence for instructing a client to get rid of his home computer and files during a government corruption investigation.

The 20 year old attorney pleaded guilty after admitting to telling his client’s wife and then later his client to get rid of their home computer records before Corruption and Crime Commission (CCC) investigators arrived. CCC investigators are said to have found wiping software on the computer.

His client, a building coordinator in Perth, was being investigated by the CCC in 2010 for allegedly handing work to contractors who offered kickbacks.

The young attorney was also fined $10,000 for giving misleading testimony during a 2010 hearing, when he denied instructing his client to get rid of his computer files when questioned by CCC investigators. A phone conversation between the attorney and his client – recorded without his knowledge – was then played at the hearing.

ACEDS reports the case highlights  a growing global trend of intolerance towards failure to preserve data. Australia has taken great strides to minimise the huge costs involved in producing ESI, including requiring parties to identify potentially relevant data, outlining the form it will be produced in and the potential costs of production before the court issues a discovery order.

No email policy? Then your emails might come back to haunt your company

 

An inappropriate email can stay on to haunt a company long after it has been deleted from an employee’s inbox.

There are countless examples of this but Tech Republic highlights a recent case involving Barclay’s Bank and a hefty fine it faced when emails revealed bankers were responsible for manipulating the inter-bank lending rate. Putting aside the financial cost – in this case a fine – Monica Seeley reports the damage to Barclays reputation could cut far deeper.

Seeley says that companies should take heed of Barclay’s experience and recognise that emails will likely still be archived somewhere, long after your company has deleted them. It can be suicidal to your company’s reputation not to have an established email and social media policy that your employees are required to follow. But worryingly, this is often the case.

Seeley says companies need to establish a comprehensive email policy which details to current and new employees which words are appropriate and inappropriate, the style of language you would prefer they used in correspondence, how to handle confidential information and what action to take if an email is missed. An email policy should then be refined and reviewed regularly as devices and technology used by employees changes.

How SilverDane sees it… email is a vital part of most businesses communications and to not have a best-use policy is like hiring a receptionist and not teaching him or her how to answer company calls. An email policy that includes the points mentioned above as well as dealing with retention will save a lot of hassle in the long run.