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Staying Smart in a Smartphone World: Part 2

By E. Job Seese

The first post in this series discussed the pitfalls—and advantages—of conducting important business communications via text messaging. This second installment addresses some of the practical measures that individual businesspeople as well as companies can take in navigating the iWorld minefield.

NSFW                             

The increasing use of text messages in conducting business affairs suggests that many have overlooked the limitations of the medium, at least in its present technological state. These shortcomings include:

  1. Potential for manipulation: If you don’t believe that texts can be manipulated, try this at home: with the help of a willing friend (or simply a second phone in hand), create a damning text exchange. Then simply edit your contact information for your accomplice to your adversary’s name—say, Voldemort. And, viola! You can now capture the entire “exchange” with screenshots that make it appear that Voldemort indeed agreed to X, or admitted Y, or called you Z. Also, most smart phones allow either sender or recipient to delete any individual messages in the chain that either wishes.
  2. Elliptical and cryptic: Text messages are notorious for their slang and shorthand, and their meaning can be opaque, especially to a judge or jury without the benefit of necessary context. Although my clients will often point to specific text exchanges as “damning” proof, such exchanges can be far more ambiguous—and underwhelming—to a third party not immersed in the nuances of the parties’ communication style or in the details of the underlying topic. Conversely, entirely “innocent” exchanges can appear otherwise under the klieg lights of litigations, something Mark Cuban noted after his infamous SEC debacle over insider-trading allegations: “you lose control of every text you send,” after which “your text recipients own your texts and even the most innocent text can take on a whole new context.”
  3. Retention issues:Historically, text messages have been retrievable only as long as the user does not delete them and does not change or lose the device containing the texts. And as noted in the first post in this series, service providers themselves generally preserve the content of text messages for only 3 to 5 days. That said, preservation is increasingly becoming the norm for iMessages because of iMessage backup to the iCloud and the availability of professional iPhone data recovery utilities such as PhoneRescue.
  4. Locating the relevant exchange: Even for old text messages that have been retained, retrieving and reviewing (not to mention organizing) them is still exponentially more cumbersome than it is for email communication. It happens to all of us: you go to find something from a prior text thread—a friend’s address or details for your dinner plans—only to find that the message is too far “up” the thread. Even when you finally find the thread, you spend five minutes “pulling down” exchanges. While merely an inconvenience in social situations, this inability to locate important communications is another reason to think twice about conducting actual business via text.
  5. Admissibility hurdles: Although courts are increasingly willing to admit text exchanges into evidence, the bar is still higher than it is for emails. This means that, even if you successfully and accurately capture the exchange and can provide your audience all the relevant context, there is no guarantee that you will be able to get the communication into evidence. In particular, the potential for manipulation noted above has prompted some courts to refuse to admit texts simply for lack of “authentication.”>[1]
  6. Expectations of users: Perhaps the biggest danger of text messaging is the varying expectations of users. Some users appreciate their permanence; others treat them as binding as a verbal conversations—which is to say, not very binding at all. This expectations gap was illustrated in a recent Massachusetts decision in which the court concluded that a string of text messages between a buyer’s agent and a seller’s agent was sufficient to form a contract for the sale of land. Specifically, and significantly, the court found that a brief text response from the seller’s agent constituted an acceptance of the buyer’s offer. The seller—who had meanwhile sold to the property to another, higher bidder—argued in court that the text exchange did not create a binding contract, relying on case law from the early 2000’s, when such technology was less ubiquitous. The court disagreed and enforced the text-message-created contract. (The case is also illustrative of the parallel universe that text messages often occupy in business negotiations: there was one, more formal exchange of emails and deal documents and then a parallel stream of communications by text. Naturally, the dispute arose around the murkier text-message exchanges.)

Individuals: Ways to Auto-Correct Your Digital Stream  

You are a prudent businessperson, but a businessperson all the same, and thus simply opting out of texting is probably not an option. What should you do?

First, simply being aware of the inherent dangers of text communications is the most important precautionary step. Most of the above-discussed risks of texting can be mitigated or altogether avoided by a mindful user.

Second, attempt to redirect text communications to email if the subject matter involves critical deal points or other communications that you may eventually want fully documented. In particular, avoid text messages intended to reach any type of binding agreement or—as is more frequently the case—to clarify the terms of an existing agreement or to reach an interim agreement (this was what happened in the Massachusetts land-sale case).

Third, to the extent that important communications end up being sent by text, confirm them via email, much as you would memorialize a phone call with a follow-up email.

Fourth, as an overarching principle, treat text exchanges as having all the downside of a face-to-face conversation (they are ephemeral and, if not properly retained by you, amount to he-said-she-said proof) and an email or similar communication (it is possible that your correspondent will preserve it and there are multiple ways in which it can be misconstrued).

Companies: Establishing Smarter Policies 

While the issue is challenging enough for individual businesspeople, the challenges can be more nuanced for companies developing a firm-wide approach. And the solutions are more complex.

Many businesses have sought to address these realities by designing and rolling out broader “smart communication” strategy (applying not only to text messages, but also to emails, voicemails, pigeon post, smoke signals, and any other way you and your company interacts).  Although there is much to be said for focusing employee thinking on how a loose and informal communication could later be misinterpreted in the harsh light of litigation, Markus Funk, a white-collar-litigation and compliance partner at Perkins Coie, cautions that the very messaging of such a plan can create significant unanticipated—and certainly unintended—legal risk of its own.

According to Funk, who co-chairs Perkins Coie’s Supply Chain Compliance group:

Cautioning employees about the risk inherent in their communications styles is appropriate, as is putting into place a formal plan to ensure alignment in this regard.  But where companies and individuals can get into real trouble is when they frame the program in such a way to suggest that the entire plan is really nothing more than a means of hiding the ‘true’ meaning of what they are saying, and depriving their future legal opponents of good ammo.

From the perspective of a prosecutor, judge or juror, “what they are hearing is something along the lines of the common ‘don’t put this type of thing in an email—stop by my office later so we can discuss face-to-face’ communication,” says Funk.  In short, just as we are urging care concerning how and what we text, we also need to be mindful about how we instruct on this topic, lest we unwittingly create many of the very same issues we are trying to avoid.

The next installment in this blog series will address what happens if you do find yourself in litigation in which text messages may contain communications that you need to prove your case or to defend yourself. In particular, we will discuss the strategies and tools that savvy litigants and their lawyers can—and increasingly must—employ to maximize their access to opposing parties’ texts and other mobile messaging exchanges, while minimizing the costs associated with discovery of such exchanges.


[1] Authentication is the requirement that the party offering the document into evidence must offer proof that the evidence is what it purports to be. In the context of text messages, the party offering the text messages must present some proof that the messages were actually authored by the person who allegedly sent them.

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