No More Excuses: Texts Are Discoverable

No More Excuses: Texts Are Discoverable

Last month, we posted that texting clients is “the new normal call.” Also increasingly the new normal:  the discoverability of texts.

Corporate Counsel recently reported that while SMS e-discovery is still finding its way, organizations shouldn’t drag their feet any longer, as evidenced by numerous court decisions.

“Texts are discoverable, and failure to plan accordingly may result in damaging admissions, adverse inferences or worse.”

But what about “the unfamiliarity with SMS data management, fear of reciprocal demands for SMS data and the belief that places an undue burden under discovery principles of proportionality and reasonableness”? That’s in the past, says Corporate Counsel. The time is now for action.

“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.”

Corporate Counsel succinctly presents the three categories of mobile device policies: company-owned-personally-enabled (COPE), bring-your-own-device (BYOD), or a hybrid approach that offers an option between COPE and BYOD. Despite a COPE policy offering the greatest control, a hybrid approach offers large, complex companies greater flexibility and at a reduced cost; but it does come with its limitations, especially given the vast number of devices and operating systems available. As a result, company-owned and managed-texting applications, (“apps”) provide a possible appealing alternative.

Additionally, there are several immediate steps that Corporate Counsel recommends to organizations and their IT departments, including employee education about communication being subject to discovery and conducting an audit of all employee devices and messaging platforms to assess device types and the level of security in place.

In summary, says Corporate Counsel, it’s about minimizing risks because it’s not a matter of if employees’ messages will become evidence, but when. Case in point …

The firm Barnes & Thornburg recently highlighted a case involving a supervisor’s unlawful — and cringe-worthy — interrogation of an employee via text.

In RHCG Safety Corp and Construction & General Building Laborers, Local 79, an employee texted his supervisor after a leave of absence, and during a union campaign, to see if it was possible to return work after a leave of absence. The supervisor responded, “U working for Redhook or u working in the union?” The National Labor Relations Board (NLRB) found that supervisor’s text constituted an unlawful interrogation and violated Section 8(a)(1) of the National Labor Relations Act (NLRA).

Of significance, the firm points out in its post that “the NLRB found that for purposes of determining legality, it doesn’t matter whether the message actually coerced the employee, so long as the interrogation was coercive in nature.”

In short, like Corporate Counsel, the firm advises that organizations should focus on their communication polices and training of employees.

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