Extract from Patrick Hammon’s article “‘Show Me Your Texts’: Discovery Challenges for Cellphone Data”
In the wake of the suspicious deletion of various text messages sent and received by the Secret Service concerning the Jan. 6 insurrection, lawyers across the country are asking the question, whether their discovery efforts have been as comprehensive as they should be.
While there is no doubt that the intentional deletion of a relevant communication or record is improper—whether it be on a cellphone or otherwise—some may be wondering whether text messages (and other social media-based communications) should be included in routine discovery requests, and whether they are part of a party’s preservation obligations. The answer to both musings is almost always going to be “Yes.”
Is Collecting This Data Really Necessary?
As an initial matter, cellphone data should always be within the scope of your discovery requests. It should come as no surprise that substantial business discussions are now trafficked through SMS communications. Whether Boomers like it or not, text messages have taken on an elevated role in Corporate America as they are becoming recognized as faster and more immediate ways of communicating than email.
Given that a propounding party merely needs to amend the typical language in the definitions of “documents” or “communications” in discovery templates to bring in this potential treasure trove of evidence, targeting such discovery would seem to be a low-to-no-cost way of obtaining additional, potentially material, discovery.
