Text messages. They’re tiny—with a total character limit of 160 characters per message (scarcely larger than a Tweet) they take up only a few hundred bytes of space. They’re convenient—so convenient that we send about 18 billion of them per day. But despite how prolific SMS messages have become, they’re still so small and seemingly-inconsequential that people might not always give them the attention they so richly deserve.
The value of text messages as a source of electronically stored information (ESI) simply cannot be understated, although (unfortunately) it often is. Too many legal professionals, to their detriment, assume emails to be the most important forms of ESI to look for, neglecting other sources. Although email makes up an increasingly large share of business communications, for example, text messages, as well as social media channels and communication apps like WhatsApp and HipChat, make up an ever-increasing chunk of total business communications.
Over the past few years, the legal system has well established how important text messages can be as evidence, and there can be consequences for neglecting them (whether willfully or unwittingly). Whatever your situation, whether you’re a forensic investigator or eDiscovery consultant, a legal professional, or the client of a legal professional, you underestimate the humble little text message at your own peril.
Here’s what can happen when you let those SMS messages pass you by:
Sanctions for Not Preserving Text Messages
In Christou v. Beatport, 2013 WL 248058, (D. Colo. Jan. 23, 2013), the defendants decided not to make any effort to preserve the text messages on an iPhone (despite receiving a preservation notice), and then ended up losing the phone. The defense argued that the phone didn’t contain any relevant texts, which was evidently the belief of the defense. Unfortunately for the defense, the court found that theory unfalsifiable—with neither the text messages nor the phone itself, neither plaintiff nor defendant could prove or disprove the claim. As a result, the defense was sanctioned.
In First Financial Security, Inc. v. Lee, 14-CV-1843 (PJS/SER), 2016 WL 881003, the court took umbrage at a failure of the defendants to produce text messages in compliance with a discovery order. When the defendants played dumb, the court declared, “the record is replete with evidence that defendants are well versed in the use of text messages.”
The court went on to say that “[s]martphones may be complicated pieces of technology, but using a basic text-messaging application is simple. It defies belief that experienced users such as defendants would have trouble locating text messages on their own phones (or asking someone to help them do so).” This failure to preserve text messages, as in Christou v. Beatport, led to an adverse inference sanction.
In Passlogix, Inc. v. 2FA Tech., LLC, 2010 WL 1702216 (S.D.N.Y. Apr. 27, 2010), similarly, the plaintiff alleged that the defendants had failed to preserve not only emails and Skype messages, but text messages as well. The court found this failure to constitute gross negligence on the defendants’ part and fined the defense $10,000.
Text Messages: Too Important to Let Slide
In H.G. Wells’ classic sci-fi tale of alien invasion, War of the Worlds, the alien invaders who colonize the Earth and lay waste to human civilization are defeated, not by the latest and greatest in mankind’s military might, but by the smallest and humblest of the Earth’s creatures: microbes and bacteria. Likewise, court can quickly turn against your favor for want of a handful of data comprising less than a few kilobytes.
Text messages may seem small enough to sweep under the rug, but their importance is big enough that people will notice the lump on the floor. For example, the administration of Wisconsin governor Scott Walker once defined text messages as “transitory records” which could be deleted and shielded from records requests. This prompted outcry from people who saw this as a way to hide communications that would otherwise have been subjected to transparency, and in 2015, the state Public Records Board revised its policy regarding transitory records.
As a legal professional, it’s your duty to practice your due diligence in preventing the loss and spoliation of text messages as well as other sources of ESI. When you need mobile evidence such as text messages collected and analyzed as risk-free as possible, you turn to the experts. At Gillware Digital Forensics and Gillware Electronic Discovery, you’ll find just the experts you need.
Our highly-skilled forensic investigators and eDiscovery consultants work closely with you every step of the way to maximize the benefits of electronic discovery and forensic investigation. When text messages you need preserved are deleted or locked in a severely damaged mobile phone, we can even leverage the expertise of the phone data recovery specialists in Gillware’s data recovery lab.