“Nothing to LOL About: E-Discovery of Texts on the Rise,” Corporate Counsel
Since the rise of email as the business world’s primary mode of correspondence, courts and counsel have introduced and improved the rules and tools “e-discovery.” But now text messages (or SMS) have led to “a glut of less formal (and less cautious) ‘instant’ communications as a supplement to, or replacement of, traditional email,” write Ryan G. Pitman and James M. Paulino II, partners in the firm’s Business and Commercial Practice Group. As recent court decisions confirm, “[t]exts are discoverable, and failure to plan accordingly may result in damaging admissions, adverse inferences, or worse.”
“Several related factors have kept SMS e-discovery from becoming a commonplace practice to date,” Ryan and Jimmy explain: “unfamiliarity with SMS data management, fear of reciprocal demands for SMS data, and the general objection that it presents an undue burden under discovery principles of proportionality and reasonableness.” But because of the ubiquity of text messages in business, litigants are increasingly willing to demand SMS e-discovery, and courts are “unlikely to accept a blanket objection based on undue burden.”
Ryan and Jimmy outline several steps companies can take to “to develop strategies and procedures to manage texting practices, to preserve information on SMS devices, and to develop procedures for SMS data” — all crucial in light of recent court decisions.
“Like email discovery before it, SMS discovery will evolve as the courts shape its parameters and as vendors and counsel develop the tools and procedures to meet this growing need,” they write. “An affirmative, integrated approach will minimize the risks when — not if — employees’ text messages become key evidence.”