The explosive growth of text messaging presents unique opportunities and challenges for the litigator. This challenge is made greater by the merging of social and professional use in “texting” along with the tendency for most people to adopt a more casual tone in texts than they might in a letter conveyed on professional letterhead.

Like e-mails, texts also have metadata, thus raising preservation challenges, and often this metadata reveals potentially relevant and powerful information (think Tiger Woods). As with e-mails, information regarding the frequency or even the mere existence of a text message at a given time may itself be significant, as in a 2008 case involving a train engineer in California who was alleged to have been texting at the time of a fatal accident.[FOOTNOTE 1]