New Focus on Text Messaged in Discovery

Lawyers often do not pay enough attention to text messages in discovery and internal investigations. A common mistake is to assume that if relevant communications are not found in corporate email, they probably did not occur. Additionally, the difficulty in collecting text messages because of policy, privacy, and various technical reasons is often why it is ignored or given a low priority when conducting corporate discovery.

Generally, texts messages are less likely to be carefully drafted and executives having “sensitive” conversations may view them as a safer and more ephemeral communication channel than corporate email. By nature, text messages are succinct and without any context compared with corporate email. The inherent brevity in the communication can often lead to misinterpretation and misunderstanding by the investigator.

Secure ephemeral communication channels like Wickr can create its own set of issues since the communication may or may not be recoverable; even if considered a corporate record. Executives using an ephemeral encrypted channel, for example, where the communication can self destruct after a set time should only use it in strict compliance with corperate policy, since an investigator may infer its use “suspicious” compared with other modes of messaging. That is why it is critical to have a transparent enforceable acceptable messaging use policy (See: Best Practices for Corporate Ephemeral Messaging).

To mitigate possible risks:

  • Corporations should have use policies regarding cell phones and the preservation or deletion of business related text messages on those phones;
  • Litigation holds should address the preservation of text messages;
  • Corporations should create a uniform use policy for ephemeral communications where the messaging is encrypted and/or has a predefined lifecycle.