In this digitally connected age, there is a routine casualness to sending text messages, social media direct messages, and emails. However, courts are heavily scrutinizing many digital communications that initially seemed harmless.
Upon the filing of a lawsuit, the discovery process enables both sides to gather information in preparation for trial. The opposing parties may request a broad range of conceivably relevant evidence. This often includes text messages, emails, and social media communications. While some assume that personal communications are not discoverable, several court cases have ruled otherwise.
As a startup, it is critical to implement robust policies that protect the company from liability down the road. This includes establishing and maintaining proper recordkeeping practices. It is also essential that startups advise their directors and officers to not overshare company information in text messages or on social media platforms.
Rules for Preservation of Electronic Records
According to the Federal Rules of Civil Procedure, companies must take measures for the “preservation and disclosure of electronically stored evidence.” Therefore, startups should maintain accurate and comprehensive corporate records.
The transient nature of text messages and direct messages sent on social media platforms can make data preservation more complex. If such messages are subpoenaed, however, it will be important to efficiently produce evidence to the court.
There are significant consequences from inadequate recordkeeping. Under Rule 37(e) of the Federal Rules of Civil Procedure, failure to preserve electronically stored information can result in court-imposed sanctions. Electronically stored information lost due to inadequate data preservation practices can also be subject to court sanctions.
Several recent court cases highlight the outsized role text messages and other digital communications can play during litigation. They also shed light on the importance of proper data preservation techniques so evidence can be produced during discovery.
Regas Christou v. Beatport: Failure to Preserve Text Messages
In the case Regas Christou v. Beatport, a nightclub owner in Denver, Colorado named Mr. Christou filed a case against a competing nightclub owner, Mr. Roulier. He brought several antitrust and monopolization claims.
During the discovery process, Mr. Christou delivered a preservation order to Mr. Roulier, demanding the defendant preserve all data potentially relevant to the case. Despite the preservation order, measures were not taken to follow the order and Mr. Roulier lost his phone.
Mr. Christou motioned for spoilation sanctions and claimed the text messages on Mr. Roulier’s phone were relevant to the case. Mr. Roulier asserted that none of his personal text messages were relevant to the case. Despite this testimony, the court sided with Mr. Christou and ruled that Mr. Roulier failed in his duty to preserve the requested text messages.
Schnatter v. Papa John’s International: Text Messages & Emails Ordered Produced
The case Schnatter v. Papa John’s International involved a request from John Schnatter, in his capacity as a director, to inspect the company’s books and records. Directors and stockholders are allowed to make such requests under Section 220 of the Delaware General Corporation Law. After the board of directors ignored his request, Mr. Schnatter initiated a lawsuit.
Mr. Schnatter, who founded Papa John’s Pizza in 1984, wanted to review the emails and text messages of the company’s directors and officers. His request was broad and included their personal communications. Mr. Schnatter claimed he wanted to assess whether there was mismanagement within the pizza company’s senior ranks.
When the case went to trial, the court ruled that the directors and officers were required to produce their emails and text messages as evidence. One reason for this outcome was that Papa John’s did not have a policy in place to restrict access to personal communications and devices. Many companies have protective policies in place that state they view “any information from the personal accounts or on the personal devices of its directors and officers to be ‘personal unrestricted information’ outside the control of the company.”
State v. Armstrong: A Criminal Case
The case State v. Armstrong included a debate over whether text message evidence could be considered by the court. The text messages in question involved threatening messages the defendant, Mr. Armstrong, sent to his ex-girlfriend, Ms. DeWitt.
Following their split, Ms. DeWitt and Mr. Armstrong attended the same event. Ms. DeWitt’s new boyfriend, Mr. Heath, also attended. A day after the event, Mr. Armstrong sent threatening text messages, including one that stated he was “about to get crazy.” Later, Mr. Armstrong arrived at an apartment complex and shot Mr. Heath three times.
At the trial, the defendant attempted to suppress the text message evidence. However, the court determined the threatening text messages should be entered into evidence. The judge explained there should not have been an expectation of privacy in communications over a mobile phone.