How to Deal With Text Messages in Discovery!

In this digital age, the discovery process can be a complex one for lawyers, especially considering the many ways that people communicate today.

At the forefront is text messaging, ;a popular communication method that 97% of Americans use daily and is the top method of communication for Americans under the age of 50.1

It also presents a number of challenges for the discovery phase of any legal case, which requires that law firms must follow a good strategy when dealing with text messages that could be an important part of any pending case.

Text Messages and Legal Cases

The discovery process in any legal case involves the requesting and collection of certain evidence that lawyers feel may be relevant to their case that could include emails, social media posts, written communications, phone calls, and more.

Even though texting is not a new tech tool, it’s largely gone unrecognized in a legal sense until more recently.

As it’s being realized now, people will put a lot more in a text than they’ll say over the phone ;or even include in an email which has led to more and more attorneys adding text messages to their list of requests during case discovery.

Text Messages Can Either Hurt or Help A Case

The point of the discovery phase is to level the playing field so that both sides of a lawsuit are dealing with the same evidence which allows law firms to completely understand the story from both sides.

As text messages have come into the spotlight, it’s important to see how they can both help or hinder a case depending on what information incriminating emails or phone calls might contain.

As many people seem to feel less inhibited when sending text, the significance of text messages can be great, which is why it is wise to refrain from texting sensitive information or avoid contacting certain parties during a case.

Points About Requesting Text Messages During Discovery

When requesting text message records during case discovery, it’s recommended that attorneys keep some important details in mind:

  • Because there’s a growing possibility that texts may be requested, attorneys have a duty to preserve these messages to turn over for discovery if requested and clients must be advised that deleted message can still be retrieved from communications carriers.

  • Text messages should be requested in their entirety during discovery so there is no ‘cherry picking’ of messages to hide damaging messages.

  • Text messages should be requested in their native format to retain things like emojis and special characters, and emojis in a more cohesive, strung format than just screen captures which can be a challenge to interpret.

  • Request electronic messages which would include all forms of texting when asking for this data, including SMS, instant messenger, Facebook messenger, WhatsApp, and any other application that can send short, quick messages as they may hold messages important to the case such as specific, dates, and topics.

  • Continue to request messages throughout the discovery period and be aware that every request for information may be met with a counter-request for the same.

  • Practice careful communications methods at the same time.

Texting Counts In Discovery

The take-home message here to lawyers and their clients is that all communications are on the table in terms of discovery, including text and electronic messages.

As more law firms understand the significance of these messages, more requests are happening.

All attorneys should keep this in mind when preserving evidence as well as requesting it for their cases and continue to remind clients about appropriate communication during the pre-trial and trial process!

1TextMagic: The TextMagic Blog: 62 Test Messaging Statistics, August 2019


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