10/27/10

Law Technology News: Harvesting Evid

Select 'Print' in your browser menu to print this document. Copyright 2010. ALM Media Properties, LLC. All rights reserved. Law Technology News. Page printed from: Law Technology News Back to Article

Harvesting Evidence From the Sea of Text Messages

Alan M. Winchester and Russell E. Maines 10-06-2010 The explosive growth of text messaging presents unique opportunities and challenges for the litigator. This challenge is made greater by the merging of social and professional use in "texting" along with the tendency for most people to adopt a more casual tone in texts than they might in a letter conveyed on professional letterhead. Like e-mails, texts also have metadata, thus raising preservation challenges, and often this metadata reveals potentially relevant and powerful information (think Tiger Woods). As with e-mails, information regarding the frequency or even the mere existence of a text message at a given time may itself be significant, as in a 2008 case involving a train engineer in California who was alleged to have been texting at the time of a fatal accident.[FOOTNOTE 1] In addition, depending on the format of the message, some texts, like e-mails, may contain attachments of other electronically stored information aside from the content of the text. Text messaging also has some unique attributes that make texts different from e-mails. For example, texts, unlike e-mails, typically travel from device to device the same way a cell telephone call travels, rather than over enterprise e-mail servers; text messages leave footprints that can reveal the general geographic locations of the sender and recipient at the time of dispatch and receipt.[FOOTNOTE 2] The collection and preservation of text messaging is much more difficult than most e-mails because it is device dependent and even carrier dependent since, with some services, like AT&T, the text may be preserved on a subscriber identity module card small chip that contains information such as text messages and contacts. With other providers, a SIM card may not be available, and the data must be taken directly from the device. In almost all instances, a litigator will need to have the device itself available, unlike e-mails that can typically be collected from a central server or from a user's hard drive. Given their utility and their rapidly increasing predominance as a form of communication, it is perhaps surprising that text messages are highly perishable. Unlike e-mails and most other ESI, text message content typically only exists in the hand-held devices of the senders and recipients, rather than in a server at the workplace. Given their short shelf life, it is possible that text messages will have been destroyed or forgotten by the time a party has reason to believe that litigation relating to them is anticipated. The litigator who acts promptly to secure text content or other information, before the information spoils, can reap great rewards in terms of showing good faith and the effort that was expended to preserve relevant information. It is presumed for the purposes of this article that text messages are discoverable under federal case law, [FOOTNOTE 3] and by analogy under New York state case law pertaining to disclosure of e-mails as "matter material and necessary" to a case, under CPLR 3101(a).[FOOTNOTE 4] In the future, the party who fails to take appropriate steps to preserve text data and content may face sanctions for spoliation if it can be shown that this information should have been considered reasonably likely to have been important at the time it still existed. EXPLODING GROWTH, SURPRISING USE The use of text messaging is skyrocketing. According to CTIA -- The Wireless Association (a wireless trade group), as of December 2009, Americans sent texts at an annualized rate of 1.5 trillion.[FOOTNOTE 5] Texting by adults in the United States increased from 58 percent in December 2007, to 65 percent in September 2009 to 72 percent in May 2010.[FOOTNOTE 6] As of May 2010, the average adult sends 10 texts a day, exactly double the rate just eight months earlier.[FOOTNOTE 7] For several years, the relative proportion of text and instant messaging relative to e-mails has been increasing[FOOTNOTE 8] (and, likewise, the amount of voice data transmitted over hand-held devices has now been eclipsed by other data, including texts, e-mails, and web data).[FOOTNOTE 9] The increased use of text messaging appears to be an outgrowth not only of the increased number of wireless device users, but also its simplicity. Text messaging is "more discreet than a phone conversation, making it the ideal form of communicating when you don't want to be overheard."[FOOTNOTE 10] It also allows for a more disjointed conversation when both parties to the discussion are working on something else and can only give partial attention to the conversation. Texting is also generational and as younger people enter the workplace, they bring their texting habits with them. The "discreet" nature of texts, and their informality, do not necessarily translate into increased discretion among its users (again, think Tiger Woods). In one recent case, during a videoconference deposition, an attorney inadvertently sent to the plaintiffs attorney a text message

law.com/jsp//PubArticleFriendlyLTN.j

1/4

10/27/10

Law Technology News: Harvesting Evid

intended for the witness, who was an employee of the transmitting attorney's client.[FOOTNOTE 11] The court's inquiry revealed that the attorney and client had exchanged at least five text messages during the deposition.[FOOTNOTE 12] The judge, finding attorney-client privilege had not attached during the deposition, required the transmitting attorney to produce all of the texts exchanged during and immediately after the deposition.[FOOTNOTE 13] TEXT MESSAGES AS EVIDENTIARY TOOL In order to understand the unique utility of text messages as an evidentiary tool, it is important to understand what text messages are, and how they work. Text messaging is a form of typographic communication, typically between mobile hand-held devices such as cell phones, iPhones, and BlackBerry devices. The most basic type of text message, and the most commonly used, is short message service, by which senders can send only alphabetical characters; a maximum of 160 characters in the Latin alphabet.[FOOTNOTE 14] Texts are, in essence, a hybrid, containing certain features of e-mails and telephone conversations.[FOOTNOTE 15] Texts piggyback on a mobile network, and travel from device to device the same way that a telephone call travels.[FOOTNOTE 16] A cell phone is constantly "talking" to its cell phone tower, even when it is not being used, over a pathway known as the control channel.[FOOTNOTE 17] As a result of this dialogue, the cell phone system has information to determine where the device is located.[FOOTNOTE 18] When a person sends a text message, the message is transmitted via the control channel to the nearest cell tower, to the user's service provider. At the service provider, various components of the cell telecommunications, including the short message service center temporarily log the message and forward it to the receiving device.[FOOTNOTE 19] If the receiving phone is inactive, the message is stored in the SMSC, up to a few days, until the receiving device is activated.[FOOTNOTE 20] With some services, the receiving device stores the text message on its SIM card.[FOOTNOTE 21] With other providers, the message is stored in the memory of the actual device. Text messages are easily lost because they travel from hand-held device to hand-held device, through third parties (the receiving cell phone tower and wireless service) that tend not to retain the message content for more than a few days. By contrast, an e-mail will travel over the internet from a computer, through a server. In a corporate environment, the employer typically maintains the server from which it can retrieve the e-mail and other ESI. This control over the data has given rise to a generally accepted legal duty to preserve e-mail information and other ESI for purposes of litigation.[FOOTNOTE 22] Text messages, by and large, are not retained on the server because the server tends not to be a part of the SMS communication pathway (text messages may be transmitted from an e-mail account, but this feature is rarely used). An informal survey of telecommunications carriers reveals that few retain text message content for more than a few days, if at all. For example, as of July 2010, Verizon users could view and print content for up to 120 hours (5 days). Verizon's customer service department states that text message content is retained for "up to" 10 days from the time received at the message center. AT&T's subpoena compliance department states that it does not retain text message content at all. Other ESI, however, such as transmission time and location data, is preserved by the carrier for a significantly longer period of time. Thus the greatest opportunity to successfully retrieve the text message content is by accessing a communicant's hand-held device, by subpoena or otherwise. If the device "disappears," or falls into the lake during a custodian's fishing trip, the message almost certainly is unavailable from that custodian's device. However, a deleted text message often may be retrieved from a SIM card. A deleted text message is not immediately erased. Instead, the space on the SIM card is freed as usable space. Specialized software would be required to retrieve a deleted text from a SIM card. SPOLIATION, PRESERVATION, RETENTION Courts will be unsympathetic toward those who have intentionally deleted text messages. In Southeastern Mechanical Svcs. Inc. v. Brody ,[FOOTNOTE 23] a case involving an employer's claim of misappropriation of trade secrets by its former employees, the defendants produced their laptops and BlackBerry devices to the plaintiff pursuant to court order.[FOOTNOTE 24] The court was particularly interested in e-mail and text messages during a one-week period between when the defendants first obtained their BlackBerry devices, and the date they synchronized their devices with their new employer's e-mail accounts.[FOOTNOTE 25] Two experts reviewed the BlackBerry devices and determined that they likely had been "wiped."[FOOTNOTE 26] The magistrate judge imposed spoliation sanctions, subject to the trial court's discretion, in the form of an adverse jury instruction regarding the defendants' failure to preserve data.[FOOTNOTE 27] The issue of text message preservation and retention is so new that few courts have addressed it. We have found no reported cases in New York state (state or federal) addressing the issue. It is not unrealistic to predict that in the not too distant future, corporations will be addressing the issue of whether they should retain text messages, the same way they retain e-mails, or establish policies directing their employees to refrain from using this medium for business communication. It is also possible that a company may determine that texting is important to its business but is so seldom involved in litigation, or if so, it is typically limited to only a few individuals, that instead of rejecting texting it will address it as part of a collection/preservation effort.

law.com/jsp//PubArticleFriendlyLTN.j

2/4

10/27/10

Law Technology News: Harvesting Evid

In some situations, preserving text messages may not be that hard. For example, the BlackBerry Enterprise Server, by default does not log instant messages between BlackBerry devices. But this setting could be changed to record such communications. This will not capture messages sent in the past, but it will for messages sent after the setting was changed. The older messages would still have to be collected from the individual devices. In the meantime, the alert litigator should act quickly any time a potential issue involving text messages arises. Action to be taken would be to verify the identities of senders and recipients and notify them to preserve their hand-held devices for inspection. It would also be prudent to take steps to determine the identity of the mobile carrier (if unknown, a sweep of the top five carriers will cover the vast majority of the market share). We have found that the subpoena compliance departments of many carriers will accept service of subpoenas by facsimile. Alan M. Winchester is a partner of Harris Beach in the New York office and leader of the e-info electronic information counseling and management team. Russell E. Maines is senior counsel to the firm in the Ithaca, N.Y., office. ::::FOOTNOTES:::: FN1 "Train Engineer Was Texting Just Before Fatal Crash," Reuters, Oct. 2, 2008. FN2 Hord, Jennifer, "How SMS Works, How Stuff Works," ("How Stuff Works"). FN3 See, e.g., Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008). FN4 See, e.g., Samide v. Roman, 5 A.D.3d 463 (2nd Dept. 2004) (requiring defendants to produce hard copies of e-mails); Kenney, Becker LLP v. Kenney, 34 A.D.3d 315 (1st Dept. 2006); D.M. v. J.E.M., 23 Misc.3d 584, 589 (Fam. Ct. Orange Co. 2009) (observing that notwithstanding an explicit statutory provision for disclosure of e-mails, courts have required their production). FN5 CTIA -- The Wireless Association Press Release, March 23, 2010. FN6 Amanda Lenhart, "Cell Phones and American Adults," Pew Internet (Sept. 2, 2010), p. 2; p. 5. FN7 Id., p. 5. FN8 Msnbc.com, "E-mail losing ground to IM, text messaging," July 18, 2006. FN9 Jennifer Wortham, "Cell Phones Now Used More for Data Than for Calls," New York Times, May 13, 2010. FN10 How Stuff Works, p. 2 ("Advantages of SMS"). FN11 Ngai v. Old Navy, 2009 WL 2391282 (D. N.J.), at 1. FN12 Id., fn. 2. FN13 Id. FN14 How Stuff Works, p. 1. Enhanced message service enables users to send and receive larger and more sophisticated messages such as photographs. Multimedia messaging service, another form, also enables users to send non textual materials including video. In this article, the term "text message" refers to the most basic and common form, the SMS text message. FN15 Id. FN16 Id. FN17 Id. FN18 Id. FN19 Jennifer Powell and Fred Schneider, "How SMS Works," Smart Computing. FN20 How Stuff Works, p.2. Obviously, a device shown to have been inactive will distort the evidence regarding location of the receiver at the time the message was received. FN21 Southeastern Mechanical Svcs. Inc. v. Brody, 657 F.Supp.2d 1293, 1298-1299 (M.D. Fla. 2009). FN22 See, e.g., Zubulake v. UBS Warburg, 217 F.R.D. 309 (S.D.N.Y. 2003); 220 F.R.D. 212 (S.D.N.Y. 2003); 2004 WL 1620866 (discussing duty of retention, cost-shifting, and ultimately imposing sanctions upon defendant for failure to produce e-mails and other ESI). FN23 Southeastern Mechanical Svcs. Inc. v. Brody, 657 F.Supp.2d 1293 (M.D. Fla. 2009) FN24 Id., 657 F.Supp. at 1297. FN25 Id., 657 F.Supp. at 1301. FN26 Id., 657 F.Supp. at 1302.

law.com/jsp//PubArticleFriendlyLTN.j

3/4

10/27/10
FN27 Id., 657 F.Supp. at 1302.

Law Technology News: Harvesting Evid

law.com/jsp//PubArticleFriendlyLTN.j

4/4