Here’s the scenario: An organization is sued by a former employee who alleges that she was sexually harassed in the workplace through a series of allegedly offensive and degrading text messages sent by a supervisor. The organization receives a discovery request for the text messages; however, the supervisor left the company before the lawsuit was filed, and pursuant to company policy, all data on his company device was deleted. The opposing lawyer argues that the employer should have preserved the device, and now must attempt to recover the deleted text messages from the device or obtain the data from its third-party communications provider. The organization is considering how to respond and whether it should take steps to rein in future text message communications.
According to recent studies from the Pew Research Center’s Internet and American Life Project:
- 91 percent of adults in the United States own mobile phones.
- 80 percent use their mobile phones to send and receive text messages.
- Nearly a third (31 percent) prefer texting to talking.
Generation Y is by far the most avid group of users of text messaging: 97 percent of adults between 18 and 24 own mobile phones and send or receive an average of 109.5 messages per day.
The point is that as these young adults continue to enter the workforce, we can expect that personal and business communications more and more will be found in text message form. And that means that increasingly, organizations must be mindful of the fact that text messages are a significant source of electronic discovery.
Until recently, despite its near-ubiquity, text messaging typically received little attention during the discovery phase of a lawsuit. But that is changing rapidly, as regulators and plaintiffs lawyers wake up to the fact that there is yet another rich source of potentially incriminating evidence out there. This uncharted territory contains significant legal and regulatory risk for business organizations. The casual, real-time feel of text messaging, together with the widespread assumption that deletion of text messages is irreversible, means that people may be willing to state via text what they would never set down in email. Recall that BP’s decision to plead guilty to criminal charges and pay $4.5 billion in penalties related to the 2010 Deepwater Horizon oil-rig explosion was heavily influenced by the content of hundreds of deleted text messages recovered from a BP engineer’s smartphone.
In fact, as demonstrated by the example of BP, the proliferation of smartphones and improvements in handheld-device forensics means that it is increasingly possible to recover deleted text messages. And as is evident to anyone who has been observing the New York City mayoral race (not to mention the candidates), the sender of a text message has absolutely no control over what the recipient chooses to do with it.
