Text messages can be powerful evidence. We know from personal experience that they are ubiquitous, both in our personal lives and our work lives. A text is less formal than an email - shorter, quicker, and more likely to draw a quick response. Texts are also more intimate because we generally only send one to someone whose phone number we have. Because of these factors, texts tend to be less guarded than emails. As a lawyer who's examined many text messages while litigating civil cases, I've often surprised by the things people put into their text messages. For better or worse, there's a level of candor in texts that you rarely find in emails!
If you are working on a case where the thoughts, moods, and actions of individuals have any bearing on the outcome - i.e., almost every case - you need to be thinking about text messages - both your own client's and the opposing party's messages. Even if you are litigating against a Fortune 500 company, text messages should be on the table. It should not come as a surprise that employees of these companies - from the top brass to the bottom of the totem pole - send and receive work-related text messages.
But you can't have a strategy for obtaining and producing text messages without knowing a bit more about them ...
What Text Messages Are and How They Work
We'll start with the "classic" text message, known as an SMS message. "SMS" stands for "Short Message Service," and the standard for such messages is defined in various publicly-available documents, such as the Short Message Service (SMS) Message Format and the URI Scheme for Global System for Mobile Communications (GSM) Short Message Service (SMS). These documents are written in hard-core nerd language, so only dive in if you enjoy that kind of thing! Here are the key takeaways:
- SMS messages have a maximum length of 160 characters (with even fewer characters for messages written in other alphabets than ours, e.g., Cyrilic).
- SMS messages are sent over voice networks - specifically the GSM (Global System for Mobile Communications) network, which is why you can send and receive SMS messages even when you have a cellular signal but no ability to connect to the internet.
- SMS messages can include multimedia content, such as images and audio, but space is extremely limited, so you'll typically see a tiny image or a short audio file, like a ringtone.
- On an iPhone, true SMS messages show up in green in the Messages app. The blue messages are iMessages, which are different from SMS messages.
By now, SMS messages occupy a small space in the larger world of messaging. SMS messages sent over cellular voice networks have been partially displaced by Internet-based messaging applications, such as iMessage, Facebook Messenger, WhatsApp, Viber, Slack, and SnapChat. Messages sent with these applications are more flexible and media-rich than SMS messages. They ofter include video, images, shared files, links to websites, audio, and interactive graphics. With SnapChat, you can even superimpose costumes and decorations onto your face as you videochat:
Non-SMS messages come in all shapes and sizes, and their format is constantly evolving. There is no standard formatting, and the internal structure of the messages themselves varies between platforms.
(Text) Messages in Discovery
As the last section shows, it's almost misleading to refer to modern messages as "text" messages: they are multimedia messages that sometimes include text. But even if we set aside the new features of messaging apps, dealing with messages in discovery presents several hard problems:
- How do we define the "native format" of text messages? Is there even a native format?
- How do we request messages in discovery without asking for too little - or too much?
- How do parties, lawyers, and vendors collect and search for responsive messages?
- How should responsive messages be produced?
These questions don't have standard or simple answers. The terrain is rocky and constantly shifting, and, at least in civil litigation, your best resource is our ability to cooperate and use common sense.
Some Rules of Thumb
I don't have The Answer to any of the above questions. All I have are a few rules of thumb that you may find helpful. If you have other rules, or if you have a question about any of these, leave a message in the comments.
- Recognize that the concept of "native format" is basically useless when it comes to messages. Instead focus on obtaining messages in formats that (1) preserve key features of the messages (such as emojis and media) and (2) are easily searchable. Most of the time, you'll get messages in CSV or JSON format, and these both do a pretty good job of satisfying these two goals.
- Remember that SMS messages are only a small piece of the messaging puzzle. If you are interested in messaging data, then you need to know about the dozens of other apps that people use to send short messages to each other. Some examples are Facebook Messenger, iMessage, WhatsApp, Slack.
- Never ask for "all" of the messages. If you ask for too much in discovery, you'll probably get nothing. It's far better to frame your request in a way that limits production to items that are actually relevant to the case.
- Discuss forms of production early in the discovery process. There is no perfect form of production for messages, so you may need to agree to a different form for different platforms. It's always best to solve these problems early.
Sample Requests and Definitions
One of the hardest things in discovery is figuring out how to ask for the things you're seeking. It's one thing to know that you want all the messages related to X, Y, and Z, and another to write the request in a way that will be crystal clear and legally enforceable if you have to file a motion to compel. To take some of the pain out of the process of writing requests, here is some sample language:
Electronic Messages: the term "electronic message" means any electronic text or media content exchanged between two or more users of a software application. Electronic messages include both SMS messages sent over cellular networks and messages sent over the Internet using applications such as WhatsApp, iMessage, Facebook Messenger, Twitter (via direct message), Slack, Google Chat, and many others. Emails shall be considered a different category for purposes of these requests.
Identifying Sources of Electronic Messages: in responding to requests for electronic messages, you should consider any software applications used by the parties and individual custodians of data as potential sources of electronic messages. Even applications that primarily serve other purposes may contain built-in messaging systems. As an example, customer relationship management software and practice management software often include messaging systems. Your search and production should take account of all reasonably available sources of electronic messages.
Any electronic messages sent from or received by <list of individuals> after <date> concerning any of the following topics: <list of topics>.
All electronic messages between <list of individuals> on the following key dates: <list of key dates>.
Any electronic messages sent or received after <date> in your custody or control - or to which you have a right of access - concerning any of the following topics: <list of topics>.
Any electronic messages sent or received after <date> in your custody or control - or to which you have a right of access - containing any of the following terms: <list of terms / keywords>.
The requests above embody a variety of different tactics that can be more or less effective depending on the nature of your case and jurisdiction. You'll almost never use all of the different varieties in a single case. Instead, pick those that makes the most sense to you, or write your own.
Do you have other strategies that you've found effective? Leave a comment below!