It should be no surprise to employers that issues are now arising concerning text messages that are similar if not identical to issues over the last few years pertaining to retention of emails. In significant litigation, each side seeks to gain access to emails of the other parties that might assist their position in the case. Legal rules require employers to retain documentary evidence, which could include text messages as well as emails, at the point the employer reasonably should have known that the evidence may be relevant to anticipated litigation. An employer that fails to retain such evidence is not only potentially subject to the assessment of fines or attorneys’ fees and costs, but conceivably might be subject to an adverse inference known as "spoilation," in which the other party either wins the case subject to a favorable inference that the lost evidence would have benefitted the opposite party. The destruction of evidence in certain circumstances can in theory determine the outcome of a case.
For many years, employers struggled with the use of emails and the business practice essentially developed that it would be impractical to prohibit emails, but that certain record retention policies were necessary. The same situation applies today to the use of text messaging. In theory, similar if not identical legal rules for text messages apply as did previously with emails.
There are various approaches employers can take to using and preserving text messages. These approaches range from prohibiting their use, methods of providing copies, or using employer-provided equipment. There may be technical solutions to these issues, but in some of them, it is still up to each individual employee to comply with the employer’s policies.