What’s in a Text? Companies Must Treat Text Messages Like All Discoverable Documents

There’s no such thing as “just a text” anymore.  Just as this quick and easy means of communication has made its way into most of our personal lives, it has also become an everyday tool in workplace communications.  This raises some issues worth considering, and failing to do so could even result in sanctions for spoliation of evidence.

Texting at Work

The line between casual communications and discoverable documents is growing finer as employees increasingly use texting as a means of communicating at work, particularly at companies that have “bring your own device” policies.  Given that, according to a 2013 Pew Research Center survey, 97% of all cell phone users between 18 and 29 years of age send and receive texts, and 94% of users between 30 and 49 years of age do, it’s very likely that a fair amount of work-related content is being shared via text messages. Discovery requests seeking some of these texts will logically follow in the event of litigation, and the courts have already made clear in several cases that failure to preserve this evidence is sanctionable.

Review Your Policy

What should you and your company do to adapt? For one thing, any document retention policy in effect must cover text messages.  Whether or not the company encourages or even allows communicating via text message on company-owned devices, if the company is aware that such communication is possible, its document retention policy should cover text messages.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.