By E. Job Seese
The previous two installments in this series addressed the pitfalls of conducting business communications via text messaging and outlined some practical measures that both individuals and companies can take in navigating the iWorld minefield.
This third and final installment discusses the still-nebulous, but rapidly-evolving, area that text messages currently occupy in the civil discovery landscape. And I recommend strategies for effectively handling discovery and introduction of text messages if you do find yourself in litigation in which text exchanges contain relevant communications.
A handful of courts have outlined how the rules of evidence apply specifically in the text-message context, but the production of text messages in civil litigation is still far from routine. The reason for this isn’t that text messages are not discoverable. Indeed, text messages have long fallen squarely within the defined scope of “documents” and “communications” for purposes of civil discovery.
But until very recently, it has been the exception, not the rule, for civil litigants to collect and exchange text messages as part of written discovery, even as the same litigants spend tens (or hundreds) of thousands of dollars in attorney’s fees on the discovery of emails. Indeed, while virtually every litigator has firsthand experience seeking or defending against sanctions for spoliation (that is, destroying or failing to preserve) of email communications, the vast majority of the same litigators have no experience with sanctions over spoliation of text messages.
Hal Blackman, founder and CEO of IST Management Services—a leading nationwide provider of litigation support services—explains this double standard between emails and text messages: Whereas emails are housed on servers that can be systematically searched for terms (even long after individual users have ‘deleted’ the emails), text messages historically have been stored only on the phones of the sender and the recipient. Blackman explains that this is changing with the advent of MMS messages, which can be stored in the cloud (think of iMessages and their retention on your personal iCloud account), but there is still no central server where all messaging communications are stored and can be searched and harvested.
Because discovery of text messages is still in an embryonic and fluid state, the burden falls heavily on individual litigants to ensure that they get meaningful discovery in this area. But therein also lies opportunity: litigants can proactively shape the scope and approach to such discovery (far more so than in areas such as email discovery, where the rules of engagement are deeply entrenched). If you are, or become, involved in litigation, what steps can you and your counsel take to shape that discovery to your maximum advantage? Below are some suggestions.
- Strategically weaponize any texts that you already have in hand. Litigants will frequently have one or more “smoking gun” text strings that they plan to use, but then fail to think about the best way to deploy that ammo. Savvy litigants (and savvy litigators) will be focused not simply on getting these smoking guns into evidence, but on the broader context and on how use a few initial texts to leverage deeper discovery into their adversary’s text messages. More on this below.
- Keep your own hands clean. As you know if you’ve been in litigation before, you must produce to the other side the full exchange of any smoking-gun texts, and not just your preferred parts. And for that matter—absent some privilege or agreed limitation on the scope of discovery—you are obligated to produce all relevant text exchanges. You can’t simply cherry-pick the “good stuff” and sit on the rest.
- Use text exchanges you already have as a crowbar to extract other exchanges to which you were not party. For example, if your opponent was included on text messages that you have in hand but fails to produce those exchanges as part of “initial disclosures” (the documents that parties must exchange shortly after commencement of litigation), you should assume that the missing text or texts are just the tip of the iceberg. And you should demand immediate correction of the omission, as well as production of “all other relevant texts” that your opponent almost certainly failed to produce. Also, your opponent’s failure to produce known exchanges will give you added credibility should you need to escalate the issue with the court (see item #8 below).
- Ask early, often, and specifically for text messages. It is a frequent practice to send your litigation adversaries a “retention letter” early in a dispute to “remind” them of their legal obligation to preserve all potentially relevant information. Your retention letter should expressly and emphatically note the duty to preserve all text strings and other such messaging data. Also, all subsequent formal document requests should do the same.
- Determine the best format for producing the texts. Until very recently, text strings were produced, and even introduced into evidence in court, as cell-phone screenshots. This is hardly a user-friendly or optics-friendly format, especially for a litigant trying to prove the significance of the contents (for example, that the text exchange formed a binding agreement). But a number of tools have recently come to market that permit the extraction of text-message content in much more user-friendly formats (such as Word or Excel). These tools permit text conversations to be strung together for easier review and presentation. And, unlike the old-school screenshots, these tools consistently and reliably capture the critical metadata, such as dates and times of the messages.
- Negotiate discovery protocols tailored to your situation. Most jurisdictions give the parties wide latitude at the outset of a case to agree to the parameters of discovery, especially of e-discovery. If you believe that the contents of the relevant text messages will, on balance, be unhelpful to you, then you may wish to carve them out from the agreed discovery protocols, a limitation that you may find your opponent amenable to given that text message discovery still tends to be outside the experience and comfort zones of many litigators and given that your opponent may be eager to avoid the associated costs and hassle of retrieving such communications. Even if you cannot reach agreement with the other side, you can seek a limitation from the court on the grounds of containing discovery costs. Conversely, if you believe that there is hidden gold in your adversary’s text exchanges, be careful not to agree to discovery limitations that would curtail your right to seek discovery into all such communications.
- Keep the other side honest. Once you begin to receive documents from the other side, promptly review them to see if they include text messages. In my experience, the great majority of productions do not. And until very recently, most litigators generally did not bother to blow the whistle on such omissions. But blowing that whistle—and doggedly insisting on production of relevant text strings—can give you some Blitzkrieg advantage. And as noted above, it can be especially effective if you already have in hand some text exchanges that the other side should have but did not produce. Use this failure as a club to demand that the other side produce all relevant text messages.
- Quickly escalate non-compliance to the court if necessary. As every seasoned litigator knows, foot-dragging in discovery is it an all too common practice. Be especially vigilant against such foot-dragging for the production of text messages. Don’t be surprised when your opponent tries to evade his/her obligations in this area, especially given that disclosure of text messages is still a nascent area of written discovery—and given that text messages are often where the true gold is hiding. If you are being stonewalled, don’t be afraid to go to the court to compel disclosure. (Of course, this is why it is critical that you have clean hands yourself in this department.)
- Be mindful that what’s good for the goose is good for the gander. If you yourself have not retained the bulk of the relevant text messages you had on your own device(s), you will want to be careful about the stones you throw. At a minimum, expect that every discovery request you make will be served directly back on you.
- Determine whether you believe that the universe of text messages will—on the balance—be helpful or detrimental to your case. Naturally, how aggressively you decide to pursue the above strategies should be driven by a cost-benefit assessment of the likely fruit of robust discovery into your adversary’s text communications. Admittedly, such an assessment is a bit like sizing up an opponent’s poker hand. But a good default assumption is that the more evidence that comes to light in discovery, the better—especially if you have justice on your side.
 For a particularly thorough judicial opinion on the subject, see Light (Kipp) v. Esbenshade, 35 Pa. D. & C.5th 58, 72 (C.P. 2013).
 But like speed limits, just because most people break them and get away with it doesn’t mean the rules cannot be enforced—and sometimes with severe consequences. In a November 2015 Wall Street Journal op-ed piece titled “I Was an Oil Spill Scapegoat,” a relatively obscure engineer who helped cap the Deepwater Horizon spill described his three-and-a-half-year ordeal being hounded by the Justice Department, primarily over his (purportedly innocent) deletion of text messages from his phone: “My case centered on the fact that I had deleted from my iPhone two extended text-message conversations.” (The full WSJ article by the Deepwater Horizon engineer can be found here: http://www.wsj.com/articles/i-was-an-oil-spill-scapegoat-1447019267).
In that particular instance, a forensic expert was able to recover most of the deleted messages. Technical experts say that such forensic recovery is generally doable, albeit difficult, if a phone has not been “wiped.” But rarely will a party in run-of-the-mill civil litigation have the DOJ-level muscle and resources necessary to determine that texts were even deleted in the first place, much less force their forensic recovery. Indeed, obtaining physical possession of the phone or device in question would typically be a necessary pre-requisite to such detective work—something that is rarely done in run-of-the-mill civil litigation.