Over the past two decades, email has evolved from a novel method of communication to the primary form of correspondence used by businesses around the world. Discovery of emails and other electronic documents has followed this trend to become a fixture of commercial litigation, with its own set of ever-improving methods and tools familiar to inside and outside counsel. Recently, short and multimedia message service (SMS and MMS, better known as text messaging) has exploded in popularity across all categories of users, including businesses, leading to a glut of less formal (and less cautious) “instant” communications as a supplement to, or replacement of, traditional email. While SMS e-discovery is in its relative infancy, numerous recent court decisions should put all organizations on notice: Texts are discoverable, and failure to plan accordingly may result in damaging admissions, adverse inferences or worse.

Several related factors have kept SMS e-discovery from becoming a commonplace practice to date: unfamiliarity with SMS data management, fear of reciprocal demands for SMS data and the general objection that it presents an undue burden under discovery principles of proportionality and reasonableness. With the expanding use of SMS, however, such excuses are going by the wayside. The growing number of decisions on this issue illustrate that plenty of litigants are willing to open this door, and that courts are unlikely to accept a blanket objection based on undue burden. In light of these trends, organizations are best advised to develop strategies and procedures to manage texting practices, to preserve information on SMS devices, and to develop procedures for SMS data management in the civil discovery context.

An organization's well-defined mobile device policy will provide the foundation for managing the use, and preservation, of this ubiquitous form of communication. There are essentially three categories: company-owned-personally-enabled (COPE), bring-your-own-device (BYOD), or a hybrid approach that gives some or all employees the option between COPE and BYOD. While a COPE policy gives organizations the most control over the mode and storage of instant messages, such uniformity presents significant costs and overhead. For large and complex organizations, a hybrid approach is often preferred because it allows increased flexibility at a reduced cost; however, the great diversity of devices and operating systems adds further complexity in preserving and managing the underlying data. For example, while a typical Android or iOS mobile device preserves text messages for some period of time after a user deletes them, both operating systems have data volume limits and hidden automatic functions allowing permanent deletion unless backed up elsewhere or re-configured and actively managed by IT professionals. There are additional usage-based variables that can be impacted by the database rules and architecture of each system, which are compounded by carrier-specific device configuration, as well as cloud-based and other personal storage options. While a growing number of manufacturer-specific and third-party software platforms are being developed to manage data retention on individual devices, there is no industry-standard enterprise solution. These factors tend to make management, data holds, backup and retrieval a case-by-case challenge.