Text messaging is rapidly becoming one of the most popular means of communication - for both personal and business purposes. Not surprisingly, text messages are emerging as critical evidence in a variety of lawsuits. Although often thought of as evidence in just criminal investigations (e.g., Kobe Bryant's sexual assault case), the use of text messages can also be key in civil lawsuits. For instance, text messages can be used in employment cases, including sexual harassment cases, where inappropriate messages have been sent. Likewise, texts can be essential to intellectual property claims where confidential information is published via text messaging.

One of the major reasons that text messages can be so valuable as evidence is that people tend to be very casual when sending texts, divulging information they otherwise wouldn't in a letter or email. This casual approach to texts is due in part to the remoteness of the devices from which texts are sent. A message sent from a mobile device simply doesn't feel as permanent as an email sent from a computer. Additionally, people erroneously believe that a higher level of privacy exists in their messages than actually does.

In reality, text messages, like other documents, are discoverable when relevant to the issues of a lawsuit. That being said, obtaining the content of texts can be challenging. Generally, a message will only be stored on a server for a limited amount of time (3 days to 2 weeks depending on the service provider). Often, that leaves the mobile devices from which the text was sent or received as the only places a message can still be found - assuming the message has not been deleted. As such, it is essential to act fast in litigation involving potentially relevant text messages, sending an "Evidence Preservation Letter" as soon as possible specifically addressing the duty not to delete potentially relevant text messages, followed by Demands for Inspection of all relevant texts.

Although the law is rapidly evolving with respect to electronic discovery and text messages in particular, it is important to know that text messages sent by you or your employees may be used against your company in litigation. It is also important to obtain text messages as evidence when asserting a claim. If you have any questions about using text messages to conduct business or the use of texts in litigation, the attorneys at Navigato & Battin are here to assist you.