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SMS: Spoliation Made Simple?

Text messages have become an increasingly important and confusing topic in litigation. As a communication tool, text messages are on the rise and are typically seen as less formal and more immediate than even email. Immediacy and convenience led to an explosion of email use and a concomitant explosion in the amount of electronically stored information discoverable in litigation. The stage is set for text messages to become valuable litigation tools – and potential albatrosses around the necks of corporate defendants.

Many misconceptions about the storage and availability of text messages exist. First, and most importantly, mobile carriers almost never preserve the content of text messages for any length of time. In civil litigation, it is nearly impossible to retrieve the content of text messages from the mobile carrier. The content typically resides only on the user’s device. This raises spoliation concerns, of course, as operating systems for mobile devices have aggressive and somewhat mysterious deletion and overwrite procedures.

Second, not every “text message” is sent through the mobile carrier. Despite the rise in “unlimited” plans for text messages, users often send messages through apps such as Google Hangouts or Apple iMessage that utilize data or WiFi rather than the mobile carrier’s Short Message Service (SMS) or Multimedia Messaging Service (MMS). Many of these apps are functionally indistinguishable from SMS and MMS messages, and the user may not know which service he or she is using for a particular message. This, of course, raises additional issues of spoliation and potential difficulty in collection.

Despite these misconceptions and fears of spoliation, text messages and related mobile device content can be extremely valuable in litigation. Metadata can be informative, as users carry the mobile device with them. Messages may include extremely detailed location information. Photographs may contain data that identifies who took the photo, as well as when and where the photo was taken.

Those who possess potentially responsive text messages data should be proactive and possibly engage an expert to avoid spoliation. At the very least, a complete backup of the device should be performed to preserve the content existing on the device at the time a litigation hold would be in effect.

Conversely, those who seek discovery through text messages should be aware of the likelihood of spoliation and promptly issue a litigation hold letter that specifies content to be preserved. A request for mobile device data should be as narrowly tailored to the subject matter as possible but should also account for the use of messaging apps as well as SMS and MMS messaging. In the event of spoliation, the seeking party should understand that even deleted messages may be recoverable through a non-destructive forensic examination – if it is performed promptly by an experienced examiner.

Text messages present challenges to both litigants seeking discovery and litigants seeking to comply with discovery requests. However, they can also be an extremely relevant source of information in prosecuting or defending against a claim. As with any evolving technology, expertise and care are necessary to avoid pitfalls.

Valerie Diden Moore

Valerie Moore