ESI or Electronically Stored Information is writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations. Stored in any medium. In recent years, ESI has come to include text messages. It begs the question: how are personal text messages sent on personal phones treated during discovery litigation?
Well, it is treated like any other piece of evidence--just as emails can be subpoenaed, so can text messages. Thus, all text messages relevant to anticipated litigation should be preserved.
A recent case from The Western District of North Carolina sheds more light on the subject. In it, an Assistant District Attorney filed a suit against her former employer, who was then the District Attorney, under Title VII for hostile work environment, sexual harassment, constructive discharge, and violation of the Equal Protection clause. Defendant sought production of text messages between the plaintiff and her self-admitted married third-party paramour. However, the texts were destroyed when the Plaintiff dropped the phone into a bath tub. After diligent pursuit of the text messages via her phone company still did not produce text messages, the defendant filed a motion to dismiss under FRCP 37(e)(1) and sanctions under 37(e)(2). The court did not grant the dismissal. They postponed their decision regarding sanctions, however, until after the defendant had a chance to prove plaintiff acted with intent to deprive. Intent to deprive is an element required by the statute. If such intent is proven, the court would either instruct the jury to presume facts unfavorable to the plaintiff or dismiss the action/enter a default judgment. The court noted that sanctions were allowed, not because of the destruction of the text messages, but because such vital text messages were not copied or saved elsewhere.
The VanZant court imposes a broad standard for the Plaintiff’s control over text messages. In it the Court found Cleopatra, a film company, had control over the text messages from the personal phone of one of its directors. The court listed contributing factors to be (i) the Director contracted with Cleopatra, (ii) he worked closely with Cleopatra, (iii) he had already participated in the case by providing documents and taking a deposition, and (vi) he had a financial interest in the film.
Guidance specific to broker dealers and their agents can be found at FINRA.org and in Regulatory Notice 11-39 and Regulatory Notice 17-18.
These cases and guidance indicate that companies need to ensure key employees save or duplicate their personal text messages once litigation is reasonably anticipated. In an era of increased litigation and communication, reasonably anticipated litigation can come any day at any time. How should companies proceed? Please contact us at Cosgrove Law Group, LLC to learn more.