Emails are the focus of the vast majority of cases involving sanctions for failing to preserve electronically stored information or ESI. Yet text and instant messages represent important sources of potentially relevant and admissible evidence that both sides must assess at the onset of a claim or litigation—or even earlier. Both the federal and New Jersey civil procedure discovery rules are crafted to encompass all forms of ESI, including text and instant messages. But how broad is the duty to preserve text messages or instant messages on employee smartphones once the duty to preserve has been triggered? While it ultimately may depend on a number of factors, failing to preserve text and instant messages is sanctionable. With the rapid proliferation of bring-your-own-device (or BYOD) in the workplace, taking proactive measures before the duty to preserve is triggered and affirmative steps after will reduce or eliminate concerns of spoliation or sanctions.

The New Jersey Court Rules and the Federal Rules of Civil Procedure permit the discovery of relevant ESI. Although text and instant messages are not identified specifically in the rules, the drafters of the 2006 amendments to the federal rules recognized that all forms of stored ESI are discoverable. See Fed. R. Civ. P. 34(a) Advisory Committee's Note (2006) (“Rule 34(a)(1) is intended to be broad enough to cover all current types of computer-based information, and flexible enough to encompass future changes and developments. References elsewhere in the rules to 'electronically stored information' should be understood to invoke this expansive approach.”). Although email is the primary method of communication in the workplace, there is little doubt that the use of text and instant messaging for substantive work-related communication is now commonplace and continues to rise. So, must every text and instant message be preserved?

Despite the lack of recent guidance from cases in New Jersey state courts addressing text or instant messages, one theme emerges in the last few years from the courts that have addressed the question: Text and instant messages must be preserved if they are within the party's control, the messages are relevant to the threatened or actual claims or defenses, and it is reasonably foreseeable that the messages would be discoverable. Sounds easy, right? LOL! Preservation of text and instant messages can pose challenges to in-house and outside counsel, especially when those messages are typically stored only on individual smartphones or tablets. In addition, such devices have storage limits as well as auto-delete features for text and instant messages.