Risks of text message deletion
While it is easier to communicate with people using text messages, the risks associated with text messaging are nevertheless significant, especially in the case of government officials and bankers. Text messages sent or received by decision-makers in the government sector and employees of financial firms are of legal importance, and compliance includes adherence to recordkeeping and archiving regulations.
Recent instances of deletion of text messages have resulted in legal hurdles for many companies and individuals, like the following:
- Sinclair v. City of Seattle (case filed on April 29, 2021): The Mayor of Seattle Ms. Jenny Durkan’s had set her phone’s text message retention period to 30 days. As a result of this, the Mayor’s text messages from Aug 28, 2019, to June 25, 2020, were automatically deleted. The deleted text messages were considered as potential evidence in a federal lawsuit against the city of Seattle. Hence, the deletion of the Mayor’s text messages became a political turmoil for the Seattle City Hall. Furthermore, text messages of several officials of the Seattle Police Department and Fire Department were also found to be deleted.
- NuVasive, Inc. v. Kormanis (M.D. N.C. March 13, 2019): This is an employment/breach of contract case. NuVasive filed for spoliation sanctions against its former employee, Kormanis for deleting his “email account and willfully allowing his text messages to be deleted.” NuVasive requested to produce the text messages between key custodians. But, Kormanis could not produce these text messages as he had set his phone to auto-delete text messages that are older than 30 days. NuVasive argued that Kormanis did not take the necessary steps to preserve the text messages after the request was made. Analyzing FRCP Rule 37(e) thoroughly, the court granted spoliation sanctions and ordered Kormanis to pay the fees/expenses incurred by NuVasive.
- DriveTime Car Sales Company, LLC v. Pettigrew (S.D. Ohio April 18, 2019): In this case of fraud between the employee and employer, DriveTime accused Pettigrew of conspiring with the co-defendants to purchase vehicles at above-market rates from Pauley Motor. DriveTime filed a motion for spoliation sanctions against Pauley Motor. Defendant Bruce Pauley was unable to produce the text messages he had with Pettigrew, before the court, as he acquired a new phone and had not archived the contents of his previous phone. Pauley failed to preserve his text messages, despite a litigation hold letter that was already issued by DriveTime’s counsel.
DriveTime requested the court to impose a mandatory adverse inference, considering the fact that the content of the deleted text messages could be unfavorable to Pauley Motor. But the court ruled that, even though Pauly Motor failed to take the necessary steps to preserve the deleted text messages, their actions did not meet the burden of demonstrating “intent to deprive” under FRCP 37(e)(2).
- Lawson v. Love’s Travel Stops & County Stores, Inc., (M.D. Pa. Jan. 9, 2020): In this Fair Labor Standards Act case against Love’s Travel Stops & County Stores, Inc., plaintiff Lawson placed a request in the court for the company to produce text messages from the company-issued mobile phones of its supervisors. The company informed the court that the proposed eDiscovery of text messages was too costly (in the range of $27,000–$150,000) and was very overly broad (over 100 cell phones). Also, text messages of people irrelevant to the case were requested by Lawson. Since the request made by Lawson did not satisfy the proportionality principles specified in FRCP Rule 26, the court ruled that a more narrowly tailored request, supported by a more specific showing of relevance, would be appropriate.
All the cases mentioned above are examples, showing the need to record mobile SMS. In all these cases the defendants failed to archive text messages which could be considered as proof in several legal disputes. It is wise to use a text message archiver, like the TeleMessage Mobile Archiver, so that text messaging compliance can be ensured.
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