May 31, 2019 Practice Points

Do You Know about the Auto-Delete Feature for Text Messages on a Cell Phone?

Attorneys need to understand new technologies and applications when addressing ESI.

By Tracy DiFillippo

When it comes to preserving electronically stored information (ESI), attorneys may comprehend the importance of emails when advising a client to take reasonable steps to preserve such evidence. Those steps may include instructions on not deleting emails and ensuring the emails are backed up if there is a company policy that automatically deletes emails after a certain timeframe.

What attorneys may not comprehend is that similar steps should be taken with respect to text messages involving key players in the case (e.g., owners of a company or certain key employees). Two recent decisions have brought to light that a party cannot claim ignorance when an auto-delete feature is running on a cell phone, resulting in the text messages no longer being available.

In Paisley Park Enter, Inc. v. Boxill, 17-cv-1212, 2019 WL1036058 (D. Minn. Mar. 5, 2019), the court recognized that under Fed. R. Civ. P. 37(e), a party is obligated to preserve evidence that the party knows or should reasonably know is relevant to future or current litigation. However, a party is not obligated to keep every electronic document or email but simply to preserve evidence that may be relevant from key players in the case. In that case, the U.S. District Court for the District of Minnesota held that the defendants’ principals and owners were key players in the case and under a duty to preserve text messages. This included requiring them to disengage the auto-delete function on their cell phones and take advantage of options to ensure their text messages were backed up to cloud storage.

Similarly, in Nuvasive, Inc. v. Kormanis, 18-cv-282, 2019 WL 1171486 (M.D.N.C. Mar. 13, 2019), report and recommendation adopted, 2019 WL 1418145 (M.D.N.C. Mar. 29, 2019), the court found that the defendant failed to take reasonable steps to preserve text messages. The U.S. District Court for the Middle District of North Carolina rejected the defendant’s argument that he was not aware that the 30-day auto-delete setting had been activated on his phone. The court noted that the defendant failed to confirm that the text messages were being preserved either on his phone or by backing up the communications for nearly seven months. The court indicated that the actions of the defendant suggested the he had intended to deprive the plaintiff of the evidence contained in the text messages.

In addition to understanding legal issues regarding ESI, attorneys need to understand new technologies and applications when addressing ESI. This includes understanding how a client’s or key party’s phone works and to instruct on the preservation of text messages.

Tracy DiFillippo is with Armstrong Teasdale LLP in Las Vegas, Nevada.

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