Anticipation of Litigation Advisor

Are an Employee’s Text Messages Discoverable?

September 26, 2018

By: Dale H. Harrison and

Today, as more and more business is conducted on handheld mobile devices, companies responding in litigation to discovery requests must be cognizant of whether their employees’ devices should be preserved and collected to review for electronically stored data.  As a general matter, to be discoverable, a document must be within the control of the party from whom the request is made. While there are no bright line rules regarding whether an employer has control over its employees’ text messages, some general principals have emerged as more and more employees use handheld mobile devices. 

First, text messages are discoverable when an employer issues handheld mobile devices to its employees. Second, text messages are discoverable when an employee uses text messages for business purposes. See Cotton v. Costco Wholesale Corp., No. 12-2731-JW, 2013 WL 381997, at *6 (D. Kan. July 24, 2013) (denying motion to compel employer production of employee text messages where employer had not issued the mobile devices, employees had not used  mobile devices for any work related purpose, and employer otherwise had no legal right to obtain employee text messages written on personal mobile devices); In re Pradaxa (Dabigatran Etexilate) Prod. Liab. Litig., No. 312MD0285DRHSCW, 2013 WL 6486921, at *17 (S.D. Ill. Dec. 9, 2013), rescinded on other grounds, 745 F.3d 216, 218-20 (7th Cir. 2014) (applying litigation hold to text messaging – to some extent – for business related communication”).

It is important to consider whether an employee’s use of text messages falls within either of these two general principals, because if a court determines that an employee’s text messages are discoverable, sanctions have been imposed when those text messages are destroyed (or deleted). Keep in mind that individuals commonly delete texts for non-nefarious reasons and may not consider this action to constitute the destruction of evidence. Some courts have granted parties leeway where text messages are deleted accidentally, such as when a device’s general operation is to delete or overwrite text messages. See Federico v. Lincoln Military Housing, 2014 WL 7447937, at *7-8 (E.D. Va. Dec. 31, 2014); Shaffer v. Gaither, No. 514CV00106MOCDSC, 2016 WL 6594126, at *3 (W.D.N.C. Sept. 1, 2016). However, many courts have imposed sanctions for spoliation or failure to comply with a litigation hold when reasonable steps were not taken to preserve text messages. See In re Pradaxa, 2013 WL 6486921; First Fin. Sec., Inc. v. Lee, No. 14-CV-1843 (PJS/SER), 2016 WL 881003, at *6 (D. Minn. Mar. 8, 2016); Shawe v. Elting, 157 A.3d 142 (De. Feb. 13, 2017).

Although the analysis is fact specific for the determination of discoverability and relevance, employers should consider having their own internal policies and procedures for preserving discoverable text messages, e.g., How does the company manage mobile device data?  Does the company have a “Bring Your Own  Device” policy?  If employees do not need to use their personal mobile devices for business purposes, does the company have a written policy that prohibits employees from using personal devices and text messages for business purposes?  If employees do use handheld mobile devices for business purposes, does the employee’s mobile device have appropriate backup software?  Does the company have a retention policy applicable to text messages and handheld mobile devices?  Does the company have a social media policy? Having policies in place will be critical down the road if a company has to respond to a discovery request and address whether an employee’s text messages are discoverable.