Are parties required to preserve text messages for the purposes of discovery? OMG
Text messaging has become more and more prevalent today; a September 2013 survey by the Pew Research Center found that 94 percent of cell phone owners between the ages of 30 to 49 send and receive texts, as do 75 percent of cell phone owners aged 50 to 64. Consequently, text messages are also becoming more and more common in discovery requests.
While some may doubt the significance or relevance of text messages, a quick glance at the news would suggest otherwise: text message conversations involving aides to New Jersey Governor Chris Christie led to accusations of intentional closures of the George Washington Bridge, and former New York Congressman Anthony Weiner was caught in a lie with his own text messages.
As more and more courts are handing down decisions outlining a party’s duty to preserve text messages, it is important that attorneys become aware of this emerging requirement in order to educate their clients and employees. Failure to do so can result in sanctions. While this is currently being judged on a case-by-case basis, the prevailing trend appears to treat text messages the same as emails and other forms of written communication.
Read more about sanctions for failing to preserve text messages here.
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