This post is part of our “How to Export and Review” series. Don’t miss our overview on how to collect email data for discovery across a wide number of common platforms.
Think your text messages are private? Think again.
If you’ve ever used your phone to send a text message for business purposes, it could suddenly and unexpectedly become a mouthwatering eDiscovery target for opposing legal teams. When it comes to litigation and investigations, text messages are “electronically stored information” (ESI) subject to discovery by opposing parties.
The discoverability of text messages is nothing new. One of the earliest cases that helped set precedent was H.J. Heinz Co. v. Starr Surplus Lines Ins. Co. in 2015. The judge told Heinz to interview 10-12 custodians in order to determine whether they’d used their personal phones to text about company matters, and produce those texts to the defendant if so.
But the practice has become more and more common in recent years, and it’s gotten to the point where businesses may need to start widening the scope of their litigation holds to cover text messages on company phones — or else risk spoliation.
Hopefully you’ll never end up in this situation, but if you do, there are a variety of methods you might consider using in order to produce them for review. Here’s a rundown of the pros and cons of each.
With an iPhone, saving an entire text message conversation boils down to a fairly simple four-step process, and that process is largely similar for Android phones. At that point, you can email the conversation to yourself or someone else.
This method is convenient and doesn’t require the use of any third-party apps, so you won’t have to spend time downloading anything (or paying for an add-on).
Because it’s a manual process, it’s highly unlikely that the ESI you produce by copying the messages in a conversation will ultimately be defensible in court. There’s too much room for messages to be doctored, or excluded outright. On top of that, the process is incredibly time-consuming, and can’t produce deleted text messages. Basically, this is not the best method to use.
In today’s world, you can find an app for practically anything, and exporting text messages from a phone is no exception.
Developers like Decipher Tools have come up with detailed technological solutions that make it easy to export both iPhone and Android text messages.
The actual file product will differ from app to app. Some of them will create a PDF file for you to share or save, while others may export to RTF or even create an email backup. The format won’t make much of a difference, though, since the discovering party will likely either be a) reading the file with their own two eyes, or b) utilizing an all-purpose culling tool like Logikcull to parse the data.
While some of these applications can’t help you procure deleted text messages, many of them (such as Decipher Tools) can maintain their own message history on your PC or Mac, reducing your risk of spoliation.
Like the manual copy and email process, third-party apps boil your export down to a process that only requires a few simple steps (in addition to downloading the tool itself). Unlike the manual copy and email process, this method is far more defensible in a court of law.
Most of them are relatively inexpensive, too. You can get Decipher Tools or its competitor Droid Transfer for a one-time purchase of $30. Some of the even more basic tools like SMS Backup+ cost less than five bucks.
If your tool doesn’t produce deleted text messages, you might increase your risk of spoliation. For instance, if an employee catches wind of the discovery process ahead of time and tries to delete evidence from his or her phone before the extraction, you could unknowingly be producing something that’s been tampered with. That could have consequences.
There’s also something to be said about the time it takes to choose a tool that’s best for you. With so many dozens of third-party tools to choose from, you’ll need to do thorough research in order to make sure you’re purchasing the one that has all the features you need.
This process involves forking over the physical phone to a technical expert for a few hours while they extract all of its messaging data (including any deleted texts).
While this may seem invasive, it’s a fairly common practice and becoming more mainstream every year. Some eDiscovery vendors have even figured out ways to extract the messaging data remotely, though that technology hasn’t necessarily been perfected quite yet.
This is without a doubt the single most defensible way to produce text messaging ESI for discovery, making it the preferred method despite the added hurdles it presents.
The cost of this process can be somewhat of a burden, and getting an employee to hand over their personal cell phone for several hours is like pulling teeth even when there’s a court order involved.
Once it’s extracted, combing through the text message data is as simple as reading the texts themselves.
The caveat is that this task might not be quite as simple as it sounds. Depending on how often you or your employee use a phone to send text messages, you could end up with an ocean of words.
Getting through that information can be a challenge, but just as there are tools to help you collect text message data, there are tools to help you review it -- efficiently, affordably, and defensibly.
eDiscovery software tools like Logikcull can parse your exported messages and perform incredibly specific searches, helping you find exactly what you’re looking for in a remarkably short amount of time. If you’re interested in seeing it in action for yourself, you can sign up for a free trial today.