Published on Apr 29, 2019 Text message preservation for civil litigation has never been more important. Court decisions emphasizing the importance of preserving relevant texts are seemingly issued on a weekly basis. However, beyond issuing a litigation hold, many lawyers have no idea how to undertake some of the most basic functions to ensure relevant text messages are preserved. The inability of counsel to advise clients how to keep relevant texts leaves parties vulnerable to data loss and court sanctions. This is an unfortunate result, though one that can be remedied if counsel are willing to become educated on some basic digital age functionality.
Basic Steps for Preserving Text Messages
Deciphering technology has generally never been a strong-suit for lawyers. Thankfully, smartphone developers have created “do it yourself” (DIY) steps that even technologically challenged attorneys can follow to help clients keep relevant texts.
Disable the Automated Destruction Feature
A good first step to preserving message content from smartphones is to determine whether a client has activated an automated destruction feature for text messages on a smartphone. This feature is analogous to the auto-delete functionality associated with enterprise information archiving systems that eliminate email messages or other electronic data after a set period of time. If there is an automated destruction feature and it has been activated, counsel should advise the client to disable that function to better ensure that relevant text messages are preserved.
For clients who wish to preserve messages sent or received through iMessage (the native messaging application for devices sold by Apple, Inc.), counsel can advise them to navigate to the “Messages” feature under the “Settings” application. Scrolling through the “Messages” feature, a lawyer will find a preference entitled “Keep Messages.” The iPhone factory setting for this option is “Forever.” This means messages and responses will be kept on the phone indefinitely unless the client unilaterally selects message strings for deletion or enables the automated destruction feature.
If that feature is enabled, it allows messages to be destroyed either 30 days or one year after being sent or received (depending on which preference is selected). If the client has enabled the automated destruction feature for either time period, counsel should advise that the factory setting of “Forever” be restored. This will prevent the automated destruction of any additional text messages pending their collection from the phone.[1]
Enable Backup of Messages to the Cloud
Another preservation method that lawyers may consider is backing up copies of relevant text messages to the cloud. Smartphones have standard features that allow clients to readily configure cloud storage and thereby back up data stored on applications, including messaging apps.
To keep messages sent or received through iMessage, clients are given the option of backing up data to iCloud, the Apple cloud storage repository. To confirm the client has activated this feature, counsel need only navigate to the client’s name found at the top of the “Settings” application. Counsel should select the client name and then choose the “iCloud” preference, which will reveal whether the client has activated backup for “Messages.” Once the “Messages” preference has been activated, the iCloud storage feature will reveal a color-coded bar indicating how much storage space (among the iPhone’s applications) the messages are consuming. Because iCloud comes with a five gigabyte storage limit, the client may have to purchase additional storage capacity to successfully back up messages.[2]
In many instances, clients have not activated message backup in iCloud. This should be evident and reflected in any number of ways including the following:
If any of these issues are applicable, counsel should work with the client to address them so text messages can be backed up to iCloud. This will better ensure that relevant messages are available pending their collection for review, analysis, and production.
Sanctions for Spoliated Text Messages
Taking these or other steps (depending on the device and messaging application in question) immediately after a duty to preserve has attached can prevent relevant messages from being destroyed. The converse is also true: neglecting to take either of these measures can result in spoliated evidence and court sanctions. The Paisley Park Enterprises, Inc. v. Boxill and NuVasive, Inc. v. Kormanis cases are particularly instructive on this issue.
In Paisley Park,[3] the court imposed sanctions on defendants for failing to preserve relevant text messages on their smartphones. Defendants did not disable the automated destruction feature on their phones and also neglected to enable cloud backup of their messages. The court held that these preservation omissions were unreasonable:
It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone. . . . [Defendants] could have taken advantage of relatively simple options to ensure that their text messages were backed up to cloud storage. . . . Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably.
Similarly in NuVasive,[4] the court found that defendant spoliated evidence by failing to preserve relevant text messages. The court identified defendant’s failure to disable the 30-day automated destruction feature on his iPhone as the principal basis for spoliation, though defendant was also unable to execute a proper backup of his messages to the cloud.
Paisley Park and NuVasive both spotlight the importance of preserving relevant text messages. If lawyers fail to advise clients accordingly and do not help them take affirmative preservation steps, clients may suffer the consequences. The court in Paisley Park confirmed this in response to defendants’ argument that their text message spoliation should be excused because their counsel did not advise them to take appropriate preservation measures. The court rejected this position, holding that such neglect was no excuse since defendants were bound by the actions and omissions of their counsel.
To avoid a spoliation scenario comparable to Paisley Park or NuVasive, lawyers should become better educated on the technological features of smartphone message preservation. eDiscovery counsel or expert consultants can provide specific direction and instructions on preservation measures including those discussed herein. By obtaining an understanding of the basic steps to enable message preservation, counsel can better ensure that relevant messages will not be lost and the client’s litigation position not compromised accordingly.
[1] Users of the Android (Google) operating system or messaging applications beyond iMessage will need to take different steps to disable the automated destruction of messages.
[2] Android phone users may back up message data to Google Drive, the default cloud storage repository supporting Android phones.
[3] Paisley Park Enters., Inc. v. Boxill, — F.R.D. — , 2019 WL 1036058 (D. Minn. Mar. 5, 2019). For a more detailed analysis of the spoliation that transpired in Paisley Park, please read Ralph Losey’s insightful and engaging post on this case.
[4] NuVasive, Inc. v. Kormanis, 18-cv-0282, 2019 WL 1171486 (M.D.N.C. March 13, 2019); report and recommendation adopted, 2019 WL 1418145 (M.D.N.C. March 29, 2019).
