Text Messages and Litigation: What Your Clients Should Know

Text Messages and Litigation What Your Clients Should KnowSince text messages are rapidly becoming the most commonly used form of communication for personal and business use, it should come as no surprise that new laws are surfacing surrounding the usage of these messages in legal cases. In order to protect the firms’ operations and safeguard against potential litigation regarding text messages, a proper Directors and Officers Program should be included in the insurance portfolio.

According to Inside Counsel, under Federal Rules of Civil Procedure (“FRCP”) 34, ESI is discoverable if it is “stored in any medium” from which it can be obtained “either directly or, if necessary, after translation… into a reasonably usable form.” Therefore, texts fall under this category and will have to be supplied if they do not cost undue burden or hardship to produce.

However, this is not a uniform agreement. Personal phones or companies that issue phones and are encouraged to be used for personal matters are not subject to investigation. Otherwise, personal privacy laws might be compromised, causing even more legal action.

Courts are careful about employees’ privacy interests and the “expectation of privacy” in texts, says the article.  As companies do not have control or ownership of personal phones, these are often not used in legal cases regarding business conflictions. Unless the employee’s phone is used for business, it is most likely immune to discovery.

Directors and officers should be especially weary of these regulations and how they pertain to their legal actions. By becoming familiar with these laws, additional violations can be avoided.

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