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eDiscovery Challenges with Text Messages

By: Rick Mirsky

The ubiquity of cell phones and text messaging has created significant challenges for attorneys in the realm of electronic discovery. As mobile devices become increasingly central to both personal and professional communication, the volume and complexity of potentially relevant electronically stored information (ESI) has grown exponentially.

Text messages, in particular, present unique challenges due to their informal nature, frequency, and the technical hurdles involved in their preservation and collection. This includes not only text messages but also metadata, location information, and other communications on platforms like WhatsApp or iMessage.

Legislative Challenges of Text Message Preservation

Text messages, like emails and other substantive electronic communications, cannot be obtained directly from service providers or online hosts via subpoena due to the restrictions of the Electronic Communications Privacy Act (ECPA) and the Stored Communications Act (SCPA). As a result of this, and the proliferation of 'end to end encryption' in both native and third-party messaging apps, 'text messages' are most often available only from the device(s) of the senders and recipients (and any backups of those devices, cloud or local).

Tension Between Evidence Preservation and Personal Privacy

A challenge attorneys face is the inherent tension between the need to preserve potentially relevant evidence and individuals' privacy expectations regarding their personal devices. Many employees use their personal phones for work-related communications, creating a complex scenario where relevant business discussions may be intermingled with private conversations. This brings up issues of data segregation and raises questions about the scope of discovery requests.

Courts are tasked with ensuring that discovery is proportional to the needs of the case, balancing the relevance of the information with the burden of production and the privacy interests of the individuals involved. This can lead to conflicts over the scope of discovery and the need for protective orders to limit access to sensitive information. As a result, attorneys must be adept at negotiating discovery parameters and protecting their clients' privacy rights while complying with e-discovery obligations.

Technical Obstacles in Collecting Text Messages

The technical aspects of collecting and preserving text message data also present significant obstacles. Unlike emails, which are typically stored on centralized servers, text messages are often stored locally on devices and may be automatically deleted after a certain period. The variety of mobile operating systems, messaging apps, and storage methods further complicates the collection process. Additionally, the ephemeral nature of some messaging platforms such as Facebook,, Snapchat, Telegram, Signal, WeChat, WhatsApp, Discord and others where messages automatically disappear after being read, creates preservation challenges that may conflict with legal hold obligations. Attorneys must also contend with the increasing use of emojis, abbreviations, and slang in text communications, which can make it difficult to interpret messages accurately and can lead to disputes over the meaning or intent behind the communications.

Authentication and Chain of Custody Challenges

Authentication and chain of custody concerns also loom large in the context of text message discovery. Attorneys must be prepared to demonstrate the authenticity and integrity of collected text messages, which can be particularly challenging given the ease with which such communications can be deleted, altered, or fabricated. Moreover, the metadata associated with text messages - such as timestamps, read receipts, and delivery confirmations - may be crucial for establishing context and authenticity but can be difficult to preserve and present in a forensically sound manner.

Technical Solutions for Text Message Preservation

To address these challenges, legal professionals can employ various technical solutions:

  1. Mobile Device Management (MDM) Software
    1. Implements organization-wide policies for data retention
    2. Separates personal and business data on devices
    3. Facilitates remote collection and preservation of relevant data
  2. Forensic Collection Tools
    1. Cellebrite UFED and Oxygen Forensic Detective for comprehensive data extraction
    2. Enables the creation of forensically sound copies of mobile devices
    3. Preservesmetadata and maintains chain of custody
  3. Cloud-Based Collection Methods
    1. Collection of backups from cloud services (iCloud, Google Drive)
    2. Reduces reliance on physical device access
    3. Can capture deleted messages in some cases
  4. Advanced Processing and Review Platforms
    1. Specialized software for processing and reviewing mobile device data
    2. Features like threading, deduplication, and analytics specific to mobile communication.
    3. Integration with existing e-discovery workflows

Best eDiscovery Practices for Attorneys

  1. Develop clear BYOD (Bring Your Own Device) policies that address data preservation and collection
  2. Implement legal hold procedures specifically tailored to mobile devices
  3. Engage forensic experts early in the discovery process
  4. Use sampling techniques to address proportionality concerns
  5. Maintain detailed documentation of collection and processing methods
  6. Consider in-camera review for privacy concerns.
  7. Stay current with evolving technological solutions and legal standards

As courts continue to refine their approach to mobile device discovery, attorneys must remain adaptable and informed about both the legal precedents and technical solutions available. By understanding the intersection of law and technology in this space, legal professionals can better navigate the challenges of mobile device discovery while ensuring compliance with their obligations to courts and clients.