Deflategate (Part Three, concl.): Tom Brady is texting, your grandmother is texting

In my first post in this series, I looked at how and why texts so often become deeply troubling evidence. I the second post, I began looking at recent cases dealing with discoverability of text messages. In this final post, I’ll look at cases that shed more light on how courts view and deal with text messages.

In EEOC v. Original Honeybaked Ham Company of Georgia, (D. Colo., Nov. 7, 2012), an employment discrimination case, the court considered the defendant’s motion to compel production of social media content and cell phones. The court decided to order in camera review of any cell phone used by the plaintiffs to send text messages during the relevant time period. 

In Cotton v. Costco (D. Kan., July 24, 2013), also an employment discrimination case, the court held that Costco’s bring your own device (BYOD) policy did not make employees’ personal cell phone texts discoverable. The court in Cotton reasoned that since the phones used by Costco employees involved in the case were not issued by Costco and were not used for any work-related purpose, Costco didn’t have the text messages “within its possession, custody, or control.”

This is in contrast to In re Pradaxa (Dabigatran Etexilate) Products Liability Litigation (S.D. Ill. Sept. 25, 2013), in which the court sanctioned an employer for failing to preserve text messages on both company issued and personal cell phones.

One takeaway from these cases is that a court will likely take a hard look at whether a company issued its employees the devices for work purposes.

Another recent case provides dealt with the collection and preservation of text messages.

Frederico v. Lincoln Military Housing, LLC (E.D. Va., Dec. 31, 2014) is a personal injury and property damage case in which the defendants brought a motion for sanctions based on the plaintiffs’ failure to produce texts and social media information. The defendants sought dismissal of the case but the court decided instead to impose sanctions comprising the cost of expert fees for production of Facebook records and attorney’s fees.

The court said the plaintiffs’ failure to produce text messages was done in good faith and that extreme sanctions were precluded under FRCP Rule 37(e).

The court then went on to perform a detailed analysis of text message storage on devices and variations among cell phone carriers’ text message retention systems.

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These cases underscore that text messages are now an important source of eDiscovery.

What about the future? Tom Brady is texting, your grandmother is texting (with hilarious and horrible results thanks to autocorrect), and most six-year-olds seem to have their own phones. So it’s only a matter of time before many of those texts become part of some future eDiscovery dispute.

Lawyers should understand the basics of how devices and carriers store text messages and how courts handle quetions about preservation and disclovery so that they can better protect their clients.

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Joshua C. Garbarino, Esq. is director of managed review at eTERA Consulting in its Washington, D.C. office. eTERA is an end-to-end litigation consulting firm. Garbarino has experience in various aspects of eDiscovery, including review, case management, strategic planning, and government investigations. He can be reached here.