January 2018 Newsletter - Text Messages in Litigation

Happy New Year! In this month’s Feder Law Firm Newsletter we discuss the increasingly common role of text messages in litigation.

Overview
Think of text messaging as the younger cousin of email. As email has evolved into a primary means of communication for business professionals, the discoverability of emails in litigation has become common and well known. Many business and legal professionals are rightfully cautious when it comes to sending emails, and are sensitive to the fact that emails can end up as exhibits in court proceedings. That caution is equally necessary for text messages, which are often saltier and more personal than emails. As the cell phone has become the primary communication device, the growth of SMS and MMS messaging -- better known as text messaging -- has exploded. As a result, text messages are making their way into the litigation and discovery process as well.

No Storage of Text Messages
Unlike emails, which are often stored and preserved on a central server, there is no central data repository for text messages. Verizon is the only wireless carrier that stores text messages for any period of time, and Verizon only maintains the messages for 3-5 days. The only way to obtain a text message weeks or months after it was sent is to retrieve it from one of the actual devices that sent or received the message.

Authenticating Text Messages
A recent Colorado appellate case, People v. Heisler, announced a standard in Colorado for authenticating text messages for use in litigation. The defendant in Heisler was convicted of harassing his ex-girlfriend through frequent calls and text messages after she asked him to stop communicating with her. Prosecutors introduced printouts of many of the text messages sent by Heisler as evidence of the alleged harassment, and he was convicted and sentenced to 30 days in jail. On appeal, Heisler argued that his conviction should be overturned because the text messages had not been properly authenticated before being introduced into evidence. The Court of Appeals disagreed, and articulated the following standard for authenticating text messages in Colorado:

“First, a witness with personal knowledge must testify that printouts of text message(s) accurately reflect the content of the message(s). Second, a witness with personal knowledge must provide testimony establishing the identity of the purported sender of the text message(s). Identity may be established through a combination of at least two of the following: (1) the phone number was assigned to or associated with the purported sender; (2) the substance of the text message(s) was recognizable as being from the purported sender; (3) the purported sender ’responded to an exchange in such a way as to indicate circumstantially that he or she was in fact the author of the communication’; or (4) any other corroborative evidence under the circumstances.” People v. Heisler, 2017 COA 58, ¶ 15.

Preservation of Text Messages in Civil Litigation
Companies or individuals involved in litigation often find themselves subject to a “litigation hold” which requires the preservation of evidence until the lawsuit is resolved. As text messaging becomes more prevalent in the business world, business and legal professionals must be cognizant of the discoverability and use of text messages as evidence in litigation. Text messages sent from a personal device, if related to the litigation, are discoverable and may be subject to the preservation requirements of a litigation hold even if the employer does not own the text messaging account. Employers may wish to implement policies for the use and preservation of text messages in the event they receive a litigation hold. For example, many devices automatically delete text messages after a certain period of time, and failure to stop automatic deletion of messages after receiving a litigation hold may be sanctionable by a court.

Regas Christou v. Beatport, LLC involved several Denver nightclubs who filed a lawsuit against a former employee and others alleging violations of the Sherman Act for anti-competitive behavior. The principal defendant received a litigation hold notice which directed him to preserve all potentially relevant emails and text messages. Subsequently, the principal defendant pulled a “Tom Brady” and claimed he had lost his iPhone and all the text messages saved on it. The court found that the defendant had failed in his duty to preserve the text messages, and allowed the plaintiffs to argue an adverse inference to the jury by introducing evidence at trial that the defendant had received a litigation hold notice and subsequently failed to preserve the text messages.