By Andrew Cary on December 5, 2016
Given its position as a quick and easy way to exchange information, texting continues to grow in popularity as a way for co-workers to communicate about substantive business related activities. With the growth in business texting, the division between private and discoverable communications has become extremely thin. While courts in civil litigation are unlikely to allow a wide open search of an entire personal mobile phone given the privacy issues that would come into play, texts on personal devices are still very much an open discovery source. This is especially true if the request for text messages is narrowly targeted and the information sought is unavailable from other sources.
According to eWeek, over 80% of people use text messaging for business and 15% said that more than half of their total number of text messages are for business purposes. Given this information, it is not surprising that text messaging has been a regularly contested subject in litigation discovery disputes. Courts have shown they are willing to hand out harsh sanctions and fines in excess of $1 million when they believe discoverable text messages were improperly destroyed.
The following are some fairly straightforward steps a company can take in protecting itself from costly e-discovery disputes relating to text messages in both federal and state court.
1. Create An Effective Mobile Device Policy
Many e-discovery problems can be avoided in the first place by creating a well-written and comprehensive mobile device policy. The policy should clearly lay out under what circumstances, if any, texting will be allowed for business purposes by company employees. The language used in the policy should be straightforward and easy for all company employees to understand.
If helpful, a mobile device policy can be tailored specifically to different aspects of the company’s business. For example, if a company employs a large sales force that relies on texting as a way to communicate simple logistics related meetings with customers to co-workers (such as the timing and location of meetings), it may make sense to have the policy state that texting is allowed for communication of meeting logistics but that it is never to be used for substantive business purposes. This type of mobile device policy would also need to include a clear and concise definition as to what type of communications would be considered substantive.
Drafting a mobile device policy can be a challenge if you are unfamiliar with how they are put together and what information should be included. Therefore, it often makes sense to consult with those who specialize in e-discovery to make sure you are doing what is necessary to protect your business.
2. Take Appropriate Steps To Ensure The Mobile Device Policy
Is Being Followed By Company Employees
There are several steps a company can take to ensure that its employees understand and follow a mobile device policy. First and foremost, the details of the mobile device policy should be communicated both verbally and in writing to all employees. The company should also provide its employees training on how the mobile device policy applies to them. In addition, employees should be given an opportunity to ask questions about the policy and how it may affect them. Once these steps have been performed, employees should be required to sign a form indicating that 1) they are aware of the policy; 2) they have been given the opportunity to ask questions about the policy; and 3) they will follow it. Further, the policy should be included in the company employee handbook and that handbook should be distributed to all current employees and any new employees moving forward. Any updates to the policy should be communicated immediately to all employees.
3. Encourage Verbal Communications Rather Than
Electronic Communications Between Employees
Another way to protect your company from incurring unnecessary costs and potential sanctions related to text messages requested through e-discovery is to encourage employees to communicate face-to-face or on the phone rather than by electronic means. Communicating verbally rather than by electronic means is often the most effective to get a point across to a co-worker. In addition, it can lead to more collaboration and less misunderstanding given that verbal communications are not limited to what can be typed on a mobile phone or computer.
4. Address Text Messaging As Part Of Litigation Hold Procedures
When issuing a litigation hold, it is important to include language instructing employees to preserve all text messages in a litigation hold policy. It is surprising how often attorneys neglect to take this critical step. Including specific language addressing text messaging in a litigation hold policy can help avoid the loss of critical data, which often times cannot be retrieved.
As text messaging in business continues to grow in popularity, it is important for companies to make sure that they take the steps necessary to protect themselves against costly e-discovery disputes. The steps outlined above are a good way for companies to try to protect themselves against incurring costly sanctions for spoliation of evidence related to text messages when litigation arises.