Author: John C. Mitby
Phone: 608-575-4077
Email: jmitby@hbslawfirm.com

Most people know at least a little about discovery in a civil law suit, and are cautious not to put things in writing, or have meetings with written notes discussing a potential case, or post something on social media since in a civil case this information is “discoverable” and can either hurt or help a case depending on which side makes use of it. In addition, clients are cautioned about using either company or personal email accounts since they are also subject to discovery.

But here comes the new form: “I not going to call or email but TEXT my comments.” Texting has replaced many other forms of communication, and for some reason, many people believe that text messages (or other forms of instant messages) are private and the other side will not see them. They may be wrong.

First of all, if there is a litigation hold in place, you may have a duty to preserve text messages. Second, competent opposing counsel is likely to explore trying to obtain the text messages. Even if the content is not preserved, the date, time, sender and recipient of the message may be preserved by the service provider and may be of use to establish when some conduct of a party took place. Third, there may be issues of privilege as to the content of any text, or disputes as to whether it is relevant. Fourth, unless messages are saved by the user, only the wireless provider may have access to past text messages. Although there may be no requirement as to how long a service provider is required to maintain texts, in more and more civil and criminal matters, parties have been able to obtain text messages. Fifth, courts increasingly allow the subpoena of text messages, and permit messages to be admissible if they are properly authenticated. Finally, text message discovery can be quite costly; text messages were recently at issue in an otherwise simple employment matter where the text message discovery ended up costing far more than the claim was worth.

In every case, even before filing suit, it is best to avoid texting about the case, matters, or issues involved. Recovered text messages have been used to destroy the interpretation of non-compete agreements, to establish elements of discrimination, and to defeat personal injury and worker’s compensation cases.

Regardless of which side you are on, it is best to advise clients not to use texting as a way of communicating about their cases. Whether you are an employer, an employee, or an organization, it is unwise to use texting as a way of communicating about problems that have some reasonable possibility of ending up in being a civil or criminal dispute.

Texting can simply destroy your claim (or, if done by your adversary, establish your claim) whether you are the sender, receiver, or third-party discoverer of a text. Do not do it!