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We Don't Need to Keep Old Texts, Do We? Don't Bet the Company On It...

By Bill Yanger

texting2.jpg

You text, right?

Probably every day, several times a day. It is a pervasive and handy form of communication used by essentially everyone, including me, with a cell phone. A September 2013 survey by the Pew Research Center revealed that:

91% of American adults own a cell phone.

97% of cell phone owners ages 18 to 29 send and receive texts.

94% of owners ages 30 to 49 send and receive texts.

75% of owners ages 50 to 64 send and receive texts.

It's safe to say there are few business owners and their employees who do not use texting to conduct business in one form or another. Following our previous post "$1.5 Million For Texting? That Is Awesome, Dude" about the perils of using text messaging as a form of communication during contract discussions, along come a slew of cases which should make business owners very very wary of their company texting policies.

Understanding that these Court rulings and their implications deal primarily with fact scenarios involving parties either in or headed toward litigation, they still send an undeniable message. And in today's business climate where and when a piece of litigation or the threat of the same is going to show up on a company owner's desk is more often than not a coin toss. These cases (and undoubtedly more to come) make it clear that companies and individuals associated with those companies must take immediate and affirmative steps regarding procedures associated with not only the use and preservation of texts, but explaining those procedures to employees.

With a nod to Thomson Reuters and Practical Law for the heads up, take a look at some recent decisions that serve as a big wake-up call to any business owner:

· A party has a duty to preserve written communications, including text messages, related to the litigation (see Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 415-17 (S.D.N.Y. 2010)(defendants sanctioned $10,000 for deleting, among other electronic documents, 91 text messages) and Cytec Carbon Fibers LLC v. Hopkins, No. 11-cv-217, 2012 WL 6044778, at *2, *4 (D.S.C. Oct. 22, 2012), report and recommendation adopted by 2012 WL 6050595 (D.S.C. Dec. 5, 2012) (court imposed adverse inference jury instruction when the defendant inadvertently deleted his text messages while trying to download them to his computer for production to plaintiffs)).

· A company must explain to its employees that the litigation hold includes text messages(see In re Pradaxa (Dabigatran Etexilate) Prods. Liability Litig., No. 12-md-2385, 2013 WL 6486921, at *17, *20 (S.D. Ill. Dec. 9, 2013) (defendants sanctioned $931,500 for, among other things, failing to preserve and produce employees' text messages)).

· Failure to stop the automated deletion of employee text messages on company-issued phones is sanctionable (see In re Pradaxa, 2013 WL 6486921, at *17)).

· Discarding a cell phone containing potentially responsive text messages is sanctionable(see Christou v. Beatport, LLC, No. 10-cv-2912, 2013 WL 248058, at *13-*14 (D. Colo. Jan. 23, 2013)(court imposed a permissive adverse inference instruction when the defendant failed to preserve his text messages before allegedly losing his cell phone); Barrette Outdoor Living, Inc. v. Mich. Resin Reps., No. 11-cv-13335, 2013 WL 3983230, at *3-*4 (E.D. Mich. Aug. 1, 2013) (defendant sanctioned $35,000 and court imposed an adverse inference jury instruction when the defendant discarded his cell phone containing text messages between himself and other defendants)).

· The absence of any text messages or e-mails on employees' mobile devices is a red flag(see Se. Mech. Servs., Inc. v Brody, 657 F. Supp. 2d 1293, 1302 (M.D. Fla. 2009) (court imposed an adverse inference jury instruction when the defendants' BlackBerries had been wiped of e-mails, text messages, calendar items, contacts and attachments) and In re Pradaxa, 2013 WL 6486921, at *17(the defendants should have questioned why none of their employees produced any text messages in the litigation)).

· Text messages are as prominent a form of communication as e-mails (see In re Pradaxa, 2013 WL 6486921, at *18 ("texting has become the preferred means of communication") and Passlogix, Inc., 708 F. Supp. 2d at 417 (disregarding the defendant's claim that the deletion of text messages was harmless because they merely confirmed meeting dates and times)).

It's a technology driven world. Take heed and change with the times before you receive a text from a process server asking if he can come by to deliver a summons with your company's name on it. 

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