Editor's Note: This article was first published by Legaltech News.
The modern mobile phone is a wonderous thing. Its computing compacity is greater than mainframe computers of not that long ago—and what you’ve heard about it being more powerful than the computers NASA used to get humans to the moon? That’s true, too.
Such computing prowess comes with legal considerations, especially when the devices carry a veritable cornucopia of private data. Mobile phones and their text message output have made the news recently in the Alex Jones imbroglio, a continuation of e-discovery gone wrong in the case, and the disappearing texts of the US Secret Service.
Over the past several years, the US Supreme Court has given broad protection to the personal information in mobile phones when it comes to criminal matters.
But what about mobile phones and their text messages in e-discovery?
Text messaging has come a long way since Canadian engineer Neil Papworth sent the first text, a message reading “Merry Christmas,” on December 3, 1992. Text usage has skyrocketed over past 30 years, and there are now an estimated 23 billion texts sent worldwide each day.
In this article, we’ll look beyond conspiracy theories and Secret Service slip-ups—or subterfuge, depending on one’s perspective—to take a look at the law and technology of texts in e-discovery.
When your iPhone becomes an appealing target for opposing parties in civil litigation—where constitutional protections are not as robust—how do the law and technology of texts play a role?
Martians and the Anatomy
As Chief Justice of the United States John Roberts wrote in Riley v. California, the modern mobile phone is “now such a pervasive and insistent part of daily life that the proverbial visitor from Mars might conclude they were an important feature of human anatomy.”
The US Supreme Court has taken important steps to protect the privacy of mobile phones in criminal matters, where important constitutional rights come into play.
Riley was a landmark, unanimous decision where the High Court held in 2014 that, in most cases, police must obtain a search warrant before examining the contents of a mobile phone of a person being arrested.
Four years later, in Carpenter v. United States, the Supreme Court strengthened constitutional protections for mobile phones in criminal matters again. In 2018’s Carpenter, a closer 5-4 decision, the court held individuals had Fourth Amendment protections for data held by third parties—in this case, mobile phone carriers with cell site location data of defendants in criminal matters.
Before Carpenter, some argued that mobile phone records held by carriers were subject to the “third-party doctrine,” which provides that—where information is given voluntarily, such as to banks—there is no reasonable expectation of privacy.
However, for better or for worse, the Fourth Amendment doesn’t usually apply to private parties suing each other in civil litigation.
Most would agree the United States has the broadest discovery in civil litigation in the world, followed by its common law cousin, the United Kingdom, where e-disclosure in the courts of England and Wales is substantial as well.
The ink was barely dry on the 2006 e-discovery amendments to the Federal Rules of Civil Procedure when rulemakers realized that rapidly advancing technology required the law to pivot again.
Amendments in 2008 to the Federal Rules of Evidence brought Fed. R. Evid. 502(b) and 502(d), which protect the attorney-client privilege in some cases of inadvertent disclosure under the theory that—when massive amounts of data are being produced in discovery—something is bound to slip through.
Thus, the rules enable litigants to “clawback” inadvertently produced data without waiving privilege.
But, what if you’re in state court?
Many states have rules similar to 502(b) and 502(d). For instance, the Alex Jones text incident occurred in Texas state court, and as Texas lawyer and forensic examiner Craig Ball of the University of Texas School of Law notes, Texas has Tex. R. Civ. P. 193.3, providing for what Texas lawyers call “snapbacks,” the Texas equivalent of a federal clawback. Combined with Tex. R. Evid. 511, Rule 193.3 provides similar protection to the federal rules.
U.S. District Judge Xavier Rodriguez—who has served also as a justice on the Texas Supreme Court—has seen the issue of texts in e-discovery.
“There is a lot of data on cell phones, some relevant to a case, but a lot of it is not. There may be some privileged information, but more likely it is merely personal, medical, financial, or embarrassing material. Lawyers have an ethical obligation to ensure that privileged material is not produced, and lawyers also have an ethical obligation to safeguard their client’s non-relevant, personal data from production,” Judge Rodriguez said.
The 2015 amendments to the Federal Rules of Civil Procedure brought new provisions for cooperation, proportionality, and sanctions in e-discovery, and the proportionality provisions of Fed. R. Civ. P. 26(b)(1) and the sanctions provisions of Rule 37(e) have affected the e-discovery of text messages.
Some matters have transcended the public sector and civil litigation. For instance, in 2010, in City of Ontario v. Quon, the US Supreme Court held that a police officer had no reasonable expectation of privacy in his text messages on a city-owned device, and thus, there was no Fourth Amendment violation in the city’s search of them. Unlike most civil matters, the Fourth Amendment was triggered here because the city was a state actor.
Deflategate’s Destroyed Data
One of the more notable civil legal disputes over text messages was the so-called “Deflategate” scandal where National Football League (NFL) quarterback Tom Brady destroyed his mobile phone and the text messages on it pertaining to the alleged deflation of footballs, in violation of NFL rules, in the NFL’s 2015 American Conference Championship Game.
The timing of Deflategate was significant because the dispute was raging as the Federal Rules were changing. The U.S. District Court for the Southern District of New York’s September 3, 2015, decision in the litigation, NFL Mgmt. Council v. NFL Players Ass’n, came before the December 1, 2015, effective date of the e-discovery amendments, and the Second Circuit’s reversal of the district court came after the rule changes, on April 25, 2016.
Because the civil action was filed before the effective date of the rule changes, the court had the option of using either version of the rules.
Before the 2015 amendments to the Federal Rules of Civil Procedure, Rule 37 provided that—absent exceptional circumstances—courts could not impose sanctions for failing to provide electronically stored information (ESI) “lost as a result of the routine, good faith operation of an electronic information system.”
Brady claimed that, because he and his wife, supermodel Gisele Bundchen, were both celebrities, he routinely destroyed his mobile phones after using them to protect their privacy. In Deflategate, Brady instructed his assistant to destroy the mobile phone—and thus, the texts at issue in Deflategate.
The 2015 amendments to Rule 37(e) created multiple requirements for ESI sanctions, including the inability to restore or replace the lost data and prejudice to the other party to get even the lesser sanctions of Rule 37(e)(1) and an additional “intent to deprive” for the more serious sanctions of an adverse inference instruction, dismissal, or default judgment under Rule 37(e)(2).
Did Brady’s intentional destruction of the texts satisfy the “intent to deprive” standard?
Even though it did not cite the new rule, the Second Circuit thought it did when it wrote: “It is well established that the law permits a trier of fact to infer that a party who deliberately destroys relevant evidence the party had an obligation to produce did so in order to conceal damaging information from the adjudicator.”
However, we should note that, in reaching this conclusion, the Second Circuit cited its decision in, Residential Funding Corp. v. DeGeorge Fin. Corp., a decision repudiated specifically by the Advisory Committee on Civil Rules in its Notes to the 2015 amendments, rejecting Residential Funding holding that adverse inference instructions where permissible for merely negligent or grossly negligent behavior—as opposed to the new rule’s “intent to deprive” standard.
Droids in Discovery
More recently in a decision from June of this year, New Mexico v. Jesenya O., the New Mexico Supreme Court reversed an intermediate state appellate court and held that screenshots of texts from Facebook Messenger were admissible as evidence.
In a juvenile delinquency proceeding involving Jesenya O., the State moved to admit into evidence the Facebook Messenger texts—authenticating screenshots of the texts along with testimony from a witness that the texts were authentic.
Jesenya O.’s counsel argued against authenticating the screenshots of the texts, saying, “Anybody can have access to somebody's phone or Facebook account.” The court rejected the argument, and Jesenya O. appealed.
An intermediate state appellate court reversed, holding the trial court erred in admitting the screenshots into evidence. The intermediate court wrote that the content of the texts was not “sufficiently confidential to establish that only [Jesenya O.] could have authored the messages.”
However, the matter wasn’t over. The New Mexico Supreme Court reversed the intermediate appellate court and held the trial court did not err in admitting the screenshots.
In addition to holding that the texts were not subject to a higher standard for authentication, the New Mexico Supreme Court wrote that “a proponent of evidence need not demonstrate authorship conclusively to satisfy the authentication requirement” and that the content and substance of the texts demonstrated “‘distinctive characteristics’ offering foundational support for their authenticity.”
But, in an era of overburdened courts, should we be having such an extensive procedural history over the admissibility of text message screenshots?
Data, Not Dreck
The University of Texas School of Law’s Ball doesn’t think so.
“With most ESI, native forms of production—or, more precisely, delimited, near native formats—deliver superior utility, completeness, and economy by keeping the evidence intact and unafflicted by the costly ‘byte bloat’ attendant to static image productions,” Ball said.
“A litigant need only attempt collection by screenshots once to grasp the tedium and propensity for error that entails. Texts weren't designed to be printed. Let data be data, not dreck!”
The desire for native—or near native—productions in e-discovery transcends nations. In fact, in the United Kingdom, productions are native by default because of legal requirements, but Martin Nikel, associate managing director for cyber in EMEA in the London offices of Kroll Advisory Ltd., notes it’s not always easy.
“In the courts of England and Wales there is an obligation, unless otherwise ordered or agreed, for electronic documents to be disclosed in native format. There are challenges to this, given the array of different apps and devices used for messaging,” Nikel said.
He noted that The Civil Procedure Rules (PD 51U.13) provides that documents should be produced in native format and that “electronic documents should generally be provided in the form which allows the party receiving the documents the same ability to access, search, review, and display the documents (including metadata) as the party providing them.”
This, Nikel said, “The best approach to text or chat messages would be to provide the closest format to the original native as possible, while still being useful to the opposing party.”
Nikel noted also that special care must be taken to preserve and interpret emoticons, GIFs, and Unicode characters, adding that another decision from this year, Veasey v Macdougall and others  EWHC 864 (Ch), highlighted the need to produce in native format.
Why the Law and Technology of Texts Matter
Did we mention that people send over 23 billion texts a day?
Not only are texts ubiquitous in life today, they provide a wealth of information about litigants and their related fact patterns, which has caused the US Supreme Court to place limits on how law enforcement can use them.
The intersection of law and technology is especially important here.
For instance, litigants who have tried to use the Stored Communications Act (SCA) of the Electronic Communications Privacy Act (ECPA) of 1986 as a tool to prevent the searches of texts on mobile devices have been disappointed.
Multiple courts have held that the SCA does not apply to mobile phones because phones are not a “facility through which an electronic communications service” is provided. See Garcia v. City of Laredo and this year’s decision in Loughnane v. Zukowski, Rogers, Flood & McArdle.
Nevertheless, with people tending to be more relaxed with what they’ll write in a text versus what they may write in an email, texts provide a potential goldmine of e-discovery data—if you harvest that data in the right way.