Paul Millus Authors, "Litigation Hold Letters and Text Messages - Has Any Thought Been Given to This?"

Texting in a workplace is as commonplace as e-mail communications. However, this poses a problem when the employer is subject to litigation and receives a “Litigation Hold” letter.

The standards enunciated in the series of Zubulake decisions are well settled. Every employer should know that once a party reasonably anticipates litigation, it must not only suspend its routine document retention-destruction policy but also put in place a litigation hold to ensure the preservation of relevant documents. If the employer fails to do so, it may be subject to a claim of spoliation which can result in a myriad of sanctions ultimately hurting the defense in its case.

Yet, while it is axiomatic that all e-mail communications pertaining to the claims would readily be secured upon receipt of the litigation hold letter, how does an employer go about securing all text messages that may provide relevant evidence? Where a phone is provided to the employee by the employer, it would seem to be an easy call as the employer has rights to all messaging sent on that phone. Nevertheless, many employers do not have a policy in place as it pertains to employees maintaining text messages in the event they need to be accessed in some litigated matter. As the texts primarily reside in the phone, which the employee has control over, this leaves the employer at a disadvantage even if the phone is issued by the employer - although you should know that there are Apps that will permit an employer to track and record all such communications. The problem gets worse if an employee is using his or her own personal phone to communicate messages that may be relevant in a litigated matter. An employer’s right to examine an employee’s personal phone may be subject to privacy concerns. Thus, establishing control in order to access text messages at some time in the future will be difficult, if not impossible.

Although there appear to be no New York cases directly on point addressing text messages in a document retention policy context, there is no question that text messages can and will have relevant evidence relating to claims such as discrimination in the workplace. Thus, careful thought must be given to this problem before a court rules that the failure to maintain a policy on text messages and the ultimate destruction of those text messages constitutes spoliation.

Employers should consider including requirements in their document retention policy that an employee in receipt of an employer-issued phone must maintain all text messages exchanged between that employee and any other employee - whether the communication was personal in nature or conducted outside normal business hours. Such a policy would give the employer more control over potentially relevant evidence and avoid liability for failing to take action. As for personal phones, an employer’s nondiscrimination policy should be enough to dissuade employees from engaging in discriminatory behavior at any time utilizing their personal phones. It would be unlikely in such a scenario that a court would find an employer guilty of spoliation given the limitations that an employer would have over its employees’ personal phones.