“To Text or Not to Text…” Challenges to Defending Employment Matters Involving Text Messages

A client recently received a litigation hold letter from an attorney representing a former employee. It demanded retention and preservation of all “documents and data” relating to or concerning the former employee, their work performance, and termination. The definition of documents and data also included all electronically stored information, “. . . such as e-mail, voicemail, . . . digital audio or video recordings, instant messages, text messages, social media posts, . . . and any other electronic information created, maintained or received by you.

A majority of an employer’s electronic information is stored on its internal computer storage systems. However, obtaining, securing, and preserving text messages presents its own unique challenges because texts are not typically stored on the same internal system. Below are examples of the initial challenges an employer may face in defending an employment matter that involves text messaging.

1. Identifying the devices that contain text messages. Many companies provide electronic devices, including cell phones, to their employees. Identifying and obtaining company-provided cell phones should not be difficult. However, many companies utilize “BYOD” or Bring-Your-Own-Device policies, and allow employees to use personal cell phones for business purposes. Can an employer secure a manager’s entire personal cell phone in order to preserve possible text messages contained on the phone? Does the company’s BYOD policy address this kind of a situation? Even if the cell phone is secured, what if the text messages have been deleted? Does the company need to provide the manager with another cell phone in the interim? Are there other employees who BYOD who might also have relevant text messages?
2. How should text messages be secured? Once a company identifies the devices, what steps should be taken to “preserve” the text messages? Typically the cell phones go to either the IT department for lock and key storage, or to the Human Resources department. However, many a cell phone or computer have been “misplaced” after a litigation hold letter, even if the employer took reasonable steps to secure the device. An increased level of security should be taken. One option is to send the devices to the company’s attorney for storage. Another better option is to send the devices to a forensic vendor for copying and safe keeping. In addition, employers need to determine whether the text messaging has occurred through more than one messaging app (such as Messenger, WhatsApp or SIM). Do these platforms allow for the retention and accessing of prior text messages?
3. How can the text messages be retrieved? Some mistakenly believe that text messages can be secured from the cell phone carrier. This is incorrect. Cell phone carriers may track the actual telephone numbers used while texting, and when the texts were sent, but do not have the actual text messages. Those are contained on the cell phone hardware itself. (It is estimated that in 2022 more than 41 MILLION texts were sent every minute! Text, Don’t Call: Messaging Apps Statistics for 2022 [kommandotech.com]). There are apps that can be used to download and save text messages to a desktop or laptop, but in a possible litigation context using one of those may not be the safest or best option. The safest option is to utilize a forensic vendor, or experienced resources within your attorney’s law firm, to search for and secure the relevant text messages from a cell phone.

If you have additional questions or concerns, or if you receive a litigation hold letter regarding a current or former employee, please feel free to contact any of Stites & Harbison’s attorneys in the Employment Law Service Group.