Text messages, social media, and other digital communication applications like Snapchat represent new categories of potentially relevant evidence, which must be accounted for and, in most cases, preserved during e-discovery. In Regas Christou v. Beatport, LLC (D. Colo. January 23, 2013), the court sanctioned the defendant for taking “no steps to preserve the text messages," leading to a spoliation sanction.

In this case, the plaintiff, Regas Christou, a Denver nightclub owner, filed a lawsuit against a competing nightclub owner, Brad Roulier, and others for multiple claims including violation of the Sherman Act for threats which would lead to the monopolization of online electronic dance music sales. On December 1, 2010, the defendant sent out a legal hold to key employees, directing them to preserve all potentially relevant data, including cell phone text messages. In May 2011, in response to the plaintiff's first discovery requests, the defendant did not disclose any text messages. Three months later, it was reported that Mr. Roulier, the principal defendant, lost his iPhone and all the text messages saved on it.

Subsequently, the plaintiff motioned for spoliation sanctions due to the loss of Mr. Roulier's text messages. Based on Mr. Roulier's testimony, the defendant argued that no relevant text messages existed on Mr. Roulier's iPhone. The court found the defendant's argument unpersuasive, stating “although defendants state that defendants 'found no responsive text messages,' they do not indicate that defense counsel reviewed Mr. Roluier's text messages and determined that they contained nothing of relevance." A two-part test was used by the court to decide whether spoliation sanctions were appropriate:

(1) Did the party have a duty to preserve evidence because it knew, or should have known, that litigation was imminent, and

(2) Was the adverse party prejudiced by the destruction of the evidence?

The court deemed that the defendant failed in their duty to preserve, stating “Those text messages, few as they might have been, should have been preserved and either provided to the plaintiff or potentially made the subject of further proceedings before the court." The court, however, had no basis to assume that the spoliation was nothing more than negligence, so it chose not to grant an adverse inference instruction. Instead, the court allowed the plaintiff “to introduce evidence at trial, if they wish, of the litigation hold letter and defendant's failure to preserve Mr. Roulier's text messages" and argue an adverse inference to the jury.

A more recent example of text message deletion/data wiping coming back to haunt the defendants—and, coincidentally, also a case from the music industry—comes from Paisley Park Enterprises, Inc. vs. Boxill in March of 2019. This case centered around the deceased artist Prince and his unreleased music. During e-discovery, the plaintiffs received text messages between the defendants and the defendants’ PR firm—and followed up with an additional request that the defendants could not fulfill because the phones were discarded with no backups kept.

“One of the first issues dealt with the judge [whom had] set out the chronology, and basically said that a duty to preserve had kicked in back in February 11, 2017,” said David Cohen, a partner at Reed Smith and chair of their e-discovery group, during an Exterro Case Law Review webcast. “The plaintiffs’ first request for production of documents, which they filed on December 1, 2017, requested all documents related to the timing, circumstances, format, and content of the music at issue. [The defendants] had a meet-and-confer in September of 2018. At that point, the defendants admitted that they had not preserved the text messages because both [defendants] had failed to disengage the auto-delete features on their cell phones that were automatically getting rid of text messages. To make matters even worse, [one defendant] had wiped and discarded his old cell phone in January 2018, and his new phone in May 2018, and claimed that there was no backup of either.”

The plaintiffs then motioned for spoliation sanctions, which were granted in part for expenses the plaintiffs incurred, because the defendants should have preserved the text messages.

Added Cohen: “Basically, the conclusion of the court was [that] with this loss of text messages, [defendant] had been required to take reasonable steps to preserve their text messages, they had failed to do so and in fact, not only [failed] to suspend the auto-delete, which would not have been that hard to do, but then taking the affirmative step of destroying the old phones . . . that was more egregious and, in the court’s view, showed an intent to deprive the other side of evidence.”

Regas Christou v. Beatport, LLC Case Analysis:

Add text messages to the long list of electronically stored information (ESI) that must be identified, searched, collected, reviewed and, if relevant, produced during e-discovery. Besides this, Regas Christou provides three key lessons:

(1) Duty to Preserve Potentially Relevant ESI: A common mistake is to think the duty to preserve evidence during e-discovery only extends to relevant ESI. Wrong. Potentially relevant ESI must be preserved when the preservation trigger is pulled. The defendant in Regas Christou did not have any record that any of Mr. Roulier's text messages were preserved, collected or analyzed. On top of that, none of Mr. Roulier's text messages were collected, meaning that when Mr. Roulier lost his iPhone all his text messages were gone. As a result, the court ruled that the defendant spoliated evidence, stating, “A commercial party represented by experienced and highly sophisticated counsel cannot disregard the duty to preserve potentially relevant documents."

Remember: preserve all potentially relevant ESI. Preserve by collecting or preserve by locking away the data source in question, but whatever way you do it, make sure to preserve it.

(2) Documentation: Throughout e-discovery, legal teams should document all actions/decisions and the reasoning behind those actions/decisions. Even if the defendant in Regas Christou had reviewed all of Mr. Roulier's text messages for relevancy, without a record, they would've never have been able to prove it. Tens to hundreds to even thousands of e-discovery decisions may be made during a single case. Trying to record all this information manually is incredibly tedious and often leads to the process being skipped altogether.

Look for software tools that come equipped with an audit log, which allow legal teams to automate the recording process and easily produce reports that can prove a reasonable, defensible process was utilized.

(2) Software Integration / Mobile Collection: Mobile data is discoverable—we know that now. The real question becomes: How do we efficiently search and collect this ESI in a defensible manner? In-house legal departments must have access to software that enables them to easily collect and then analyze mobile data. Accomplishing this requires: (1) A collection tool that can defensibly collect mobile data and (2) Integrating that collection tool with your e-discovery software so the mobile data can be easily ingested, searched and analyzed.

Expert insight from U.S. Magistrate Judge William Matthewman:

“I see text messages being requested on virtually a daily, if not weekly, basis. It’s a common practice now. I see it in civil cases and criminal cases. I see it when I’m dealing with, in criminal cases, pre-indictment search warrants and other applications. I see it in civil cases all the time. Text messages are now a major component of e-discovery, along with all types of other data, Snapchat, and all types of other applications that are out there percolating. [There are] new applications being developed I think on a weekly, daily, monthly basis [and] I’m not aware of any case law that says there’s a different standard whether it’s a text message or some new data format or some new technology.”

Text messages and other forms of digital data are here to stay. They aren't a fad like suspenders or skinny jeans. As the survey results show, young adults are sending close to 50 text messages per day, meaning that this new generation about to enter the workforce will have a lot more discoverable data to identify, search, collect and review. And according to Business Insider, 158 million people use Snapchat every day—and open the app an average of 18 times each day. That represents a lot of potential data for in-house legal departments to sift through, and they need to take notice. At some point, every organization is going to have to address this mobile data conundrum. It's better to establish a process now rather than being faced with a pending e-discovery sanction later.

To learn more about managing text messages and mobile devices in e-discovery, download this white paper: Most Debated E-Discovery Issues: Preserving New Data Types.