Over the past two decades, email has evolved from a novel method of communication to the primary form of correspondence used by businesses around the world. Discovery of emails and other electronic documents has followed this trend to become a fixture of commercial litigation, with its own set of ever-improving methods and tools familiar to inside and outside counsel. Recently, short and multimedia message service (SMS and MMS, better known as text messaging) has exploded in popularity across all categories of users, including businesses, leading to a glut of less formal (and less cautious) “instant” communications as a supplement to, or replacement of, traditional email. While SMS e-discovery is in its relative infancy, numerous recent court decisions should put all organizations on notice: Texts are discoverable, and failure to plan accordingly may result in damaging admissions, adverse inferences or worse.
Several related factors have kept SMS e-discovery from becoming a commonplace practice to date: unfamiliarity with SMS data management, fear of reciprocal demands for SMS data and the general objection that it presents an undue burden under discovery principles of proportionality and reasonableness. With the expanding use of SMS, however, such excuses are going by the wayside. The growing number of decisions on this issue illustrate that plenty of litigants are willing to open this door, and that courts are unlikely to accept a blanket objection based on undue burden. In light of these trends, organizations are best advised to develop strategies and procedures to manage texting practices, to preserve information on SMS devices, and to develop procedures for SMS data management in the civil discovery context.
