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Staying Smart in a Smartphone World

By E. Job Seese

NOTE: THIS IS THE FIRST IN A MULTI-PART SERIES.

You, like the rest of the world, have learned the do’s and don’ts of conducting business by email. But what about texting, which has become the preferred method of communication for large swaths of the business world? What are the advantages of conducting business via text? And the pitfalls? We address these issues below. 

From an e-world to an iWorld 

As any follower of the Netflix hit series House of Cards knows, texting and messaging is how America does its business these days—from the presidential (Claire feeding Vice-President Blythe critical information while he meets with the president of Russia) to the Machiavellian (Stamper and Grayson’s machinations) to the tawdry-cum-tragic (Frank and Zoe’s fateful assignations).

But the civil discovery practice is still geared toward an email world, even a full generation after You’ve Got Mail made AOL’s email chime synonymous with (then) cutting-edge—and edgy—communiques. And in an era when smartphones have taken over the known world (including the business world), this approach is becoming as creaky as the Meg Ryan/Tom Hanks rom-com is quaint.

A decade or two ago, the admissibility of emails represented the leading frontier of law-meets-technology evidentiary issues. But today email communications are a fixture—and even the focal point—of written discovery and evidence.  Part of the reason why email communications are now so well ensconced in civil discovery is their relative permanency, particularly when compared with the current generation of communications via messaging apps that, by virtue of their sheer volume, generally are not designed to be retained anywhere other than on a user’s device.  While emails sent and received over an employer’s network are typically saved on a network drive, the same cannot be said of text communications. In fact, AT&T and Verizon, the leading U.S. providers of SMS and MMS services, publicly disclose that the lifespan of a text message’s storage on their servers is typically three to five days.

The New Normal

Many practitioners report that the real game in civil discovery is quickly moving from emails to text communications. Michael Lopez, president of Litigation Solutions, Inc., a Denver-based litigation support company, confirms this trend: “Traditionally, the bulk of our workflow involved imaging companies’ email exchanges and entire servers looking for the ‘smoking gun’ communications, but now all we do is collect a personal device in order to harvest data like text messages.”

Lopez—whose company handles vast volumes of e-discovery annually, giving him a ringside seat to the real-time action in civil discovery—adds: “It’s surprisingly common how individuals these days have finally recognized to be prudent in email communication, only to turn around and save the most egregious comments for their group chats.”  Lopez’s remarks reflect an increasingly common phenomenon in business dealings: there is the “formal” chain of communications conducted over email, and then there is a parallel, shadow trail of text messages, which is where the “real” negotiations happen.

Why the Shift? 

There are several drivers behind this sea change toward text communications and other forms of messaging. For one thing, texting provides users with the perceived confidentiality and intimacy of a verbal conversation but with the convenience and time-saving properties of email. And then there is the cost-saving function: many businesses simply no longer want to pay for server space to facilitate and house email communications. Also, many users operate under the impression (often mistaken) that texts, rather than emails, are a better way to protect sensitive trade secrets and other sensitive business information.

But that’s not the end of the story. Much of this movement from emails to texts is embodied by the teenage texting acronym KPC—“keeping parents clueless.” That is, as the business world has come to understand that “email is forever,” savvy users often try to end-run such data archiving with backdoor text exchanges they assume will leave a less permanent digital footprint. The appeal of some mobile messaging apps, like SnapChat and Cyber Dust, is precisely their self-destructing messages. The latter was created by entrepreneur and Dallas Maverick’s owner Mark Cuban on the heels of his acquittal of insider trading allegations in a case that the SEC sought to build largely on the strength of Cuban’s various electronic messages. Launching the app, Cuban expressly touted the way it avoids the reach of civil discovery: “if you are in a business with a lot of lawsuits, you save a lot of time and money because nothing sent or received on [Cyber Dust] is discoverable.”

And perhaps the biggest driver is simply the invasion and gradual conquest of the business world by millennials—a generation that dates, mates, and celebrates via text. For this generation, doing business via text is the equivalent of your grandfather’s handshake deal—more intimate and “genuine” than an email, but nevertheless intended to be every bit as binding as any more formal medium.

The Challenges Posed by the Ubiquity of Texting

Put differently, text messages are what emails were 15 years ago—an informal and novel medium on which the business world increasingly relies, but falls in a grey area in legal practice. In fact, these areas are even greyer than with email. Not only do text messages suffer from the evidentiary infirmities that historically plagued email communications—the informality, the casual tone, the imprecision—but they have additional problems. Unlike with emails, there is no central data storage for texts, which means that either a sender or a recipient can manipulate the substance of a text with relatively little effort. Also, the prevalence of slang and “inside baseball” in text communications can make them maddeningly difficult to use as case-closed evidence that many clients expect them to be. The next installment in this series will recommend practical measures that individuals can employ–and best practices that companies can adopt–to minimize the risks posed by these grey areas.

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