The electronic discovery of text messages is here to stay. Whether we like it, more and more evidence can be found in these casual communication chains. So what can you do as an attorney to make sure you correctly conduct discovery (and avoid spoliation sanctions)? This post discusses recent legal precedents about the discovery of text messages, when spoliation sanctions apply, and best practices to avoid these sanctions.
Recent Court Rulings Permitting (and Clarifying) Text Message Discovery
The following cases demonstrate the intention of courts to hold parties accountable for providing all potentially relevant electronically stored information—including text messages—while litigating a claim.
In Lawrence v. Rocktenn,1 the plaintiff objected to the discovery of text messages, emails, videos, and photographs, citing personal privacy concerns. The court rejected this argument and reasoned that all text messages, emails, videos, and photographs related to the case were highly relevant, granting the motion to compel production of the electronic evidence.
In Walker v. Carter et. al,2 the plaintiff refused to produce text messages for over eight months, and the court affirmed a sanction on the plaintiff, including payment to defense attorneys for the time they spent compelling production of text messages.
In First Financial Security, Inc. v. Freedom Equity Group, LLC,3 the defendant failed to produce relevant text messages during discovery and alleged that they had been innocently deleted by individuals who did not know they needed to be preserved. The court found this defense unacceptable. It held that the defendant had a duty to preserve all relevant electronic data and that it took no reasonable steps to do so. The court ruled that the plaintiff proved spoliation under the Federal Rules of Civil Procedure 37(e) and applied a sanction against the defendant.
In some ways, these rulings are an unsurprising continuation of electronic discovery principles. Regardless of the storage format, all electronic documents that are relevant must be produced. It is useless to argue that certain types of communication are exempt. Arguments can be made around relevance, undue burden, prejudice, etc.
Spoliation of Evidence
The spoliation of evidence is “the intentional, reckless, or negligent withholding, hiding, altering, fabricating, or destroying of evidence relevant to a legal proceeding.”4 It is prohibited by the American Bar Association’s Model Rules of Professional Conduct, Rule 37(e) of Federal Rules of Civil Procedure, and Title 18 of the United States Code. In other words, destroying evidence can be a criminal offense as well as a professional one.
The American Bar Association and Title 18 of the United States Code prohibit a lawyer and party to a case from destroying evidence or assisting someone else to destroy evidence that is pertinent to a trial. Under Federal Rules of Civil Procedure 37(e), if electronically stored information is lost because a party failed to take steps required to preserve it, and it cannot be replaced, then sanctions may be enforced by the court, including dismissal of the wrongdoer’s claim, judgement against the wrongdoer, application of the adverse inference rule, and monetary sanctions.
It is imperative that an attorney help his or her client comply with discovery rules—the result of the case may be riding on a good faith effort to provide all relevant electronic documentation.
Best Practices to Avoid Spoliation of Evidence
- Advise clients to preserve all potentially relevant data during e-discovery—not just relevant electronically stored information.
- As soon as litigation is foreseeable, notify the client of the need to preserve relevant information. Preservation of all potentially relevant data may require a change in company policy, which might generally require destruction of company paperwork, videos, emails, or other company product.
- The client should be reminded of the various types of electronic data, including text messages, and specifically reminded to preserve each of these types.
- Document all decisions made regarding electronic discovery in a case. Find a way to report and produce a record that shows there was a process in place to thoroughly review all of the electronic data. The attorney must be able to show involvement in this process.