[Editor’s Note: This article has been republished with permission. It was originally published February 27, 2025 on the eDiscovery Assistant Blog]
Why Text Messages and Ephemeral Data Are Now Critical in eDiscovery
For years, litigators focused on emails and corporate documents as the primary sources of discoverable evidence. But the way people communicate has changed. Today, crucial case evidence is just as likely—if not more likely—to be found in text messages, WhatsApp chats, Slack channels, and other mobile-based communications.
Courts have made it clear: mobile device discovery is no longer optional. In 2024 alone, over 200 disputes were decided over the failure to preserve mobile data, leading to serious sanctions, adverse inference rulings, and, in some cases, case-determinative outcomes. The message from the courts is unmistakable—if you aren’t proactively managing mobile ESI, you’re at risk of losing critical evidence and damaging your case.
Key Case Law Developments in Mobile Discovery
The 2024 case law highlights several key risks and challenges when it comes to mobile device discovery.
1. Text Messages Are Just as Important as Emails—And Courts Expect Preservation
In Safelite v. Lockridge, a former store manager was sued for violating a non-compete agreement by recruiting employees through text messages on his personal iPhone. The court found that his duty to preserve those messages was triggered when he received a cease-and-desist letter.
Despite the warning, Lockridge had an auto-delete setting on his phone that erased messages every 30 days. By the time the issue was discovered, the relevant texts were gone. The court ruled that Lockridge’s lack of sophistication as an individual defendant did not excuse the failure to preserve, and it issued sanctions under Rule 37(e)(1).
🔹 Takeaway: Counsel must ensure that clients disable auto-delete settings on mobile devices as soon as litigation is anticipated. Simply advising clients to preserve is not enough—verification is key.
2. Failure to Preserve Texts Can Derail a Case
In Maziar v. City of Atlanta, a former city official alleged she was fired in retaliation for whistleblowing. The City argued that she was dismissed for misconduct at a key meeting, but failed to preserve text messages from her supervisor’s work and personal phone.
Because the messages were lost, the court denied the City’s motion for summary judgment, forcing the case to trial. The lost texts, while seemingly minor, could have provided crucial context for the termination decision. The court also awarded monetary sanctions for the City’s failure to preserve.
🔹 Takeaway: Even seemingly minor text message deletions can significantly impact litigation strategy. Failing to preserve text messages can eliminate early case resolution options, increasing costs and risks.
3. Intentional Deletion of Text Messages Can Lead to Case Dismissal
In Jones v. Riot Hospitality Group, the plaintiff deleted key text messages and encouraged witnesses to do the same. Defense counsel noticed suspicious gaps in the text message records and sought forensic analysis, which confirmed that critical communications had been intentionally deleted.
The court ruled this was deliberate spoliation and dismissed the case under Rule 37(e)(2).
🔹 Takeaway: Courts take intentional deletion of mobile data seriously. Producing large volumes of other evidence does not excuse targeted deletions of relevant texts.
Best Practices for Litigators in Mobile eDiscovery
1. Identify Relevant Mobile Data Early
- Ask custodians about their communication habits. Do they use WhatsApp, iMessage, Signal, or Slack?
- Determine whether auto-delete features are enabled and disable them immediately.
- Document preservation steps to avoid later claims of negligence.
2. Use Forensic Collection Methods
- Remote collection tools now allow attorneys to defensibly capture mobile data without seizing devices.
- Third-party phone records can serve as a backup when texts have already been deleted.
3. Address Mobile Data in ESI Protocols
- Be explicit about which mobile applications are covered under discovery obligations.
- Clarify the expectations for message formatting, metadata, and custodian device access.
The Bottom Line: Mobile Data Can Make or Break Your Case
Mobile device discovery is now central to litigation strategy. Text messages, Slack conversations, and WhatsApp messages provide unfiltered, real-time evidence of intent, misconduct, and business decisions. Failing to properly collect and preserve this data can lead to lost evidence, court sanctions, and avoidable litigation risks.
Litigators who embrace mobile discovery early will gain an edge, while those who ignore it will face increasingly severe consequences.
She is a co-author of Electronic Discovery and Records and Information Management, and host of Case of the Week at eDiscovery Assistant. As Principal at ESI Attorneys, Kelly manages the boutique eDiscovery and information law firm that acts as operational business partners with its clients to advise law firms, corporations, and municipalities on all areas of electronic information including eDiscovery, privacy, cybersecurity, and information governance.
Kelly is also the CEO of eDiscovery Assistant — a SaaS-based practical resource for litigators handling eDiscovery — that curates discovery decisions, rules, and additional content. She is developing an online academy to provide on-demand education for lawyers and legal support professionals to stay abreast of changes in the law and technology that affect litigation and clients’ obligations to respond.
You can reach Kelly at [email protected], join her Facebook community group at Let’s Talk eDiscovery, or connect with her on Twitter @kellytwigger.