Texts Generate New E-Discovery Dilemmas for In-House Counsel

As executives and employees increasingly rely on text messages for business-related communications and courts continue to admonish or even issue sanctions for failure to preserve texts, companies have to figure out how to handle and manage employee text messages.

For in-house counsel, this form of communication creates a number of considerations when it comes to e-discovery policies and litigation holds, including sensitivity to employee privacy and now applications that encrypt and sometimes even delete messages.

2015 survey of 254 adults in the U.S. found that 80 percent use texting for business and 15 percent indicated that more than half of their text messages were related to business. Meanwhile, courts, acknowledging that "texting has become the preferred means of communication," have in recent years imposed sanctions when text messages are not properly preserved.

These cases signal that some companies haven't yet wrapped their arms around preserving text messages properly, said Melinda Levitt, partner at Foley & Lardner. "These court cases come out often enough … that impose some sort of sanction or admonish parties for not preserving text messages," she said. "Which to me says that there are some corporations that still do not necessarily expand their collections efforts to the world of text." 

The challenges faced by in-house counsel because of the increased reliance on text messages are not unlike those that attorneys grappled with years ago in figuring out how to properly preserve emails, Levitt said. "It's a challenge, but we said the same thing about emailing and other things that have come along through the years," she explained. "And the legal world has at least come up with workable solutions, if not perfect ones."

Setting expectations with employees on what types of business-related communications might be collected is a good place to start, said Levitt. "At a minimum, I would certainly advise a corporate client to include [notice of what may be collected] in any information they provide to employees," she said. "So telling the employee from the get-go that you may have to turn over your phone is a step. It's not an assurance necessarily that everybody is going to remember that or feel comfortable with that … but it should present some level of protection to the company."

An upfront policy on preservation of text messages can help in a number of ways, said Gareth Evans, a litigation partner at Gibson, Dunn & Crutcher. "It can help ensure that you are preserving messages that you need to preserve," he said. "And two, I think it can help ensure you're not building up enormous silos of data that can be very difficult and expensive to deal with down the line."

Evans added that encrypted messaging apps have created another layer of complexity that in-house counsel should be thinking about. "The newer issue is encrypted messaging apps and particularly those where the message can go away or is deleted after it's read," he said. "There are definitely ways you can address these issues, but you have to provide the technology and application; you have to manage it appropriately, and then you also have to have a policy that, if employees and executives are going to engage in these types of communications, that it has to be on this particular application."

No matter how in-house counsel choose to handle text messages, it's wise to recognize employees' privacy concerns, said Julia Brickell, executive managing director and general counsel at e-discovery and case preparation support provider H5. "There's a very legitimate, real-life aspect as we've begun to merge our personal and business information in the same devices … and a lawyer wants to be sensitive to people's feelings of privacy," she said. "Perhaps more than in the old days, we have merged private with business. So sensitivity is in order."

It's good for companies and employees to be aligned on this, Brickell added, because otherwise, "a lot of ill will can be created."

Contributing Author

Jennifer Williams-Alvarez

Jennifer Williams-Alvarez is a staff reporter for ALM Media and Inside Counsel. She can be contacted at jwilliams@alm.com.

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