The Growing Reach of e-Discovery: Text Messages

By Gabriella Khorasanee, JD on October 14, 2013 | Last updated on March 21, 2019

Last week, U.S. District Judge Stanwood Duval refused to dismiss the indictments against Kurt E. Mix, the former BP engineer who deleted his texts in the face of impending litigation, reports The Associated Press.

This case is a prime example of the importance of having a corporate policy regarding text messaging: As the ways people use technology for business expands, so does the scope of e-discovery.

The Predominance of Texting

According to a 2013 study by the Pew Research Center's Internet & American Life Project, 91% of American adults own cell phones, and of those, 81% send or receive text messages. The statistics among younger users (18-24), i.e., the incoming work force is starker: 95% own cell phones, and of those 97% text, on average 109.5 messages per day, according to a 2011 Pew study.

The Importance of Company Policy

Since texting is such a popular way of communicating, it's necessary, as part of a responsible corporate strategy, to devise a policy for dealing with work-related text messaging among employees.

You may be thinking, our company does not allow BYOD (bring your own device) so we have nothing to worry about. Not so. Even though text messages may only be occurring on company devices that are subject to e-discovery, you still need to implement a policy. For example, what if litigation ensues after an employee has left the company, and all of the data has been erased from his mobile device? What then?

If that's not enough, then the varying legal interpretations of evidence rules should be reason enough for you to develop and implement practices for dealing with employee work-related text messages, according to Mondaq.

Establishing a Policy

No Texting

A simple, though probably not realistic, way to deal with this issue is to prohibit work-related texting among employees.

To Retain or Not to Retain?

If your company does allow texting, then it should have a retention policy. Your policies can vary by different categories of employees, and can range from retaining all text messages, to not retaining any. The company policy should also deal with the possibility of litigation, and how your company will handle discovery of text messages.

Educate and Enforce

As with all corporate policies, they are only as strong as your commitment to them, so make sure you educate the company's employees about the new policy, and enforce the policy consistently.

Some days it may seem as if all you do is create policy, but that's a part of being in-house counsel. Creating the foundation for smart corporate strategies will set you apart as a potential future GC. While it may not be terribly interesting at first, think of it as a trade-off for all those weekends you worked while at BigLaw.

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