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A legal hold can expose weaknesses in how a law firm retains text messages. For instance, when a client deletes texts about a disputed agreement, your firm could lose evidence needed to establish what was agreed.
And even if the client saved screenshots, those images might show only part of the conversation.
The same can happen when an attorney replaces their phone or closes a messaging account before preserving relevant texts.
Your firm, therefore, has a duty to ensure it takes reasonable steps to preserve relevant records once a preservation obligation arises.
In this article, we explain when that obligation begins, which text messages and related records to preserve, and how to put a legal hold into effect.
We also discuss how iPlum's phone system for law firms can contribute to your client message preservation procedures.
Table of Contents
1. When does a legal hold apply to text messages?
2. Which text messages and related records should law firms preserve?
3. How should a law firm put a text-message legal hold into effect?
4. Prepare for legal holds with a phone system made for law firm communication
5. Legal holds for text messages: frequently asked questions
6. Prepare your firm’s client correspondence for future review with iPlum
When does a legal hold apply to text messages?
A legal hold applies to text messages relevant to anticipated or ongoing litigation.
And because the obligation can begin before a lawsuit is filed, your firm should assess the circumstances instead of waiting for a court order or discovery request.
Below are the two situations that determine when relevant texts must be preserved:
When litigation becomes reasonably foreseeable
The preservation obligation begins when the circumstances make litigation reasonably foreseeable. A demand letter, a specific threat to sue, or notice of an intended claim can indicate that point.
For instance, a client receives a letter alleging breach of contract and demanding compensation before legal proceedings begin. Texts about the agreement, its performance, and the disputed obligations could be relevant to that claim. Hence, your firm should advise the client to preserve those exchanges.
That said, an ordinary disagreement does not automatically trigger the same obligation. The assessment depends on the facts available at the time, including how specifically the other party has raised a potential claim.
When litigation is already underway
An existing lawsuit requires preservation of relevant text messages, even if the opposing party has not yet requested them.
If your firm joins a case after filing, it should promptly establish whether relevant texts have been preserved. The filing also provides information about the claims that can inform the scope of preservation.
Even so, filing is not necessarily the starting date of the obligation. If litigation was reasonably foreseeable earlier, the duty to preserve relevant texts arose at that earlier point.
Which text messages and related records should law firms preserve?
Preservation should reflect the issues in the dispute. Your firm needs the relevant messages, the surrounding conversation, and the details that establish who communicated and when.
The following records should form part of that assessment:
Text conversations relevant to the dispute
Preserve exchanges concerning the events, decisions, or conduct at issue. Depending on the case, these could involve:
- Agreements and changes to their terms.
- Instructions, approvals, or objections.
- Payments, deadlines, and outstanding obligations.
- Descriptions of disputed events.
- Admissions or explanations concerning a claim.
The surrounding conversation also deserves attention. A message saying "I accept" means little if the proposal it refers to is absent. Likewise, a later reply could qualify an earlier statement or show that the participants changed their agreement.
Your firm should preserve enough of the conversation to retain its meaning, including relevant group messages. Unfavorable exchanges require the same preservation attention as favorable ones.
Attachments exchanged within relevant conversations
A text can refer to information contained in an attachment rather than state it in the message itself. Preserving the written exchange alone could therefore leave out evidence.
Relevant attachments could consist of:
- Photographs of property damage or completed work.
- Documents setting out proposed terms.
- Videos showing a disputed event.
- Audio messages containing instructions or explanations.
Preserve those files together with the messages that establish their context. A photograph, for instance, could require the accompanying exchange to explain what it depicts and why the sender shared it.
If a message links to an external document, assess that document separately. Saving the text does not necessarily preserve the linked content.
Information identifying participants and message timing
The words in a conversation are only part of the record. Your firm should also preserve available information that identifies the participants and establishes the sequence of events.
Relevant details can consist of phone numbers, account identifiers, timestamps, group participants, and available edit or reaction information.
A saved contact name alone might not adequately identify the sender. Similarly, a screenshot that omits the date could make it difficult to determine whether an exchange occurred before or after a disputed event.
Thus, preserving available identifying information allows attorneys to examine the conversation in its proper context.
Relevant messages on personal phones and other messaging accounts
A conversation's relevance does not depend on whether it took place through an approved business number.
Clients, employees, and attorneys could hold relevant exchanges in SMS, iMessage, or other messaging apps. Your firm should identify those sources, including linked devices or backups containing relevant records.
However, the presence of business texts on a personal phone does not automatically justify preserving all unrelated personal content. Define the scope according to the dispute.
Privileged texts within the scope of the hold
Relevant attorney-client texts can require preservation even when privilege protects them from disclosure.
Your firm should preserve those records, restrict access, and assess privilege before production. That said, preserving a conversation does not mean agreeing to disclose it to the opposing party.
How should a law firm put a text-message legal hold into effect?
A written notice establishes what recipients must preserve. Your firm must then confirm that they follow those instructions and that relevant messages remain available throughout the hold.
Below are the steps to put those instructions into practice:
Send specific preservation instructions to those holding relevant texts
Identify the clients, employees, and attorneys who possess relevant messages. Then send a written notice explaining what they must preserve and what actions they must avoid.
The notice should specify:
- The dispute and subjects requiring preservation.
- The relevant dates, accounts, and conversations.
- Instructions against deleting or altering relevant messages and attachments.
- A requirement to report planned phone replacements or account closures.
- An attorney to contact with questions.
Ask recipients to acknowledge receipt of the notice and confirm they can follow it. If a client does not know how to delete older messages on their phone, resolve that issue rather than treating acknowledgment as proof of preservation.
Suspend settings and account changes that could erase relevant messages
Review automatic deletion settings on the accounts and devices involved. Disable disappearing messages and, where possible, suspend routine deletion affecting relevant records.
Also, check whether backups or archives expire after a set period. An archive can retain messages today but delete them later under its normal retention schedule.
If deletion cannot be suspended, arrange another preservation method before the records expire. Likewise, preserve relevant texts before replacing a phone, closing an account, or wiping a departing employee's device.
Moving future conversations to a business number does not preserve earlier exchanges. Address the existing records separately.
Collect the records and check that the collection is complete
Select a collection method that retains the relevant conversation, attachments, and available identifying information. Depending on the device and the dispute, that could require an export or assistance from a qualified examiner.
Then compare the collected records with the source. Check for absent replies, unreadable attachments, or dates that do not match the original exchange.
On this, you need to record:
- Who collected the records and when
- The device or account from which they came
- The collection method used
- Any problems encountered and how they were addressed
Retain an unchanged preserved copy with restricted access and use separate copies for review so annotations or edits do not alter the preserved records.
Follow up until counsel authorizes the release of the hold
Assign an attorney to monitor the hold. Also, follow up with recipients, confirm that preservation measures remain effective, and address changes in devices, accounts, or employment.
As the case develops, additional participants or conversations could become relevant. Update the instructions accordingly and arrange preservation of new messages within scope.
If a recipient reports deleted texts, investigate promptly whether another participant, linked device, or backup holds a copy. Document the loss and the recovery efforts.
Finally, release the hold in writing only after counsel has assessed the remaining proceedings, potential appeals, court orders, and other preservation obligations.
Prepare for legal holds with a phone system made for law firm communication
A legal hold can remain active as attorneys change phones, colleagues take over client correspondence, and new messages arrive. Your firm's phone system should account for those changes.
With iPlum, you get powerful legal communication technology your firm can use during that process, from restoring recent texts to retaining related audio records.
With iPlum, you can:
Access earlier correspondence during a lengthy dispute
A dispute can continue long after the initial exchange. Your firm could need to revisit messages sent before negotiations failed or litigation began.
The iPlum Enterprise plan provides ten years of text and call recording archiving. Your firm can use that extended retention period to access earlier business correspondence as the case develops.
Restore recent texts after reinstalling the app
An attorney who reinstalls a messaging app needs to know whether earlier conversations remain accessible.
iPlum’s text restoration feature allows users to restore the last 60 days of texts in the app. Older archived texts remain accessible through the portal within the applicable plan's retention period. Archiving starts when the relevant plan begins.
Let designated colleagues respond to preservation questions
A client could report a planned phone replacement while the responsible attorney is away. A delayed response could leave the client uncertain about what to preserve before transferring devices.
With iPlum’s Shared Line, designated colleagues can receive texts and view the existing conversation history through the same business number.
Your firm can use that access to continue preservation discussions during absences, with the earlier instructions available to the colleague responding.
Review recorded calls referenced in text messages
A text stating “proceed as discussed” can refer to instructions given over the phone. If your firm lawfully recorded that call, the recording could provide context that the text alone does not contain.
iPlum provides incoming and outgoing call recording, playback, and downloadable audio files. It also offers a standard recording announcement.
Where recording is lawful and appropriate, your firm can review the relevant audio alongside the text exchange. Apply the necessary consent requirements before recording.
Preserve voicemail that explains a subsequent text
A client could leave detailed instructions in a voicemail, then send a short text asking the attorney to act on them. Preserving only the text would leave the underlying instructions out of the record.
iPlum's voicemail transcription lets users read the message, while the original audio remains available. The service also offers downloadable voicemail audio.
With iPlum, your firm can assess both records together and preserve relevant audio along with the associated text. Use the recording to check the wording rather than treating the transcription as an exact substitute.
Schedule follow-ups about outstanding preservation actions
After receiving preservation instructions, a client may still need to confirm that automatic deletion has stopped or identify another account that contains relevant texts.
iPlum's scheduled texting lets you prepare a message for a future date, including within an existing conversation.
Your firm could use it to request an update before an agreed deadline. The responsible attorney should then review the reply and address any unresolved action.
Legal holds for text messages: frequently asked questions
Does a legal hold apply to texts on a personal phone?
Yes. Relevant texts on personal phones are subject to the preservation obligation. The message's connection to the dispute determines whether it must be preserved, regardless of who owns the device.
Are screenshots enough to preserve text messages?
Not necessarily. Screenshots can omit attachments, timestamps, and surrounding replies. Preserve the original message data where reasonably possible, then check that the collected records retain the relevant information.
Must a law firm preserve privileged text messages?
Yes. Preserve privileged texts within the scope of the hold. Privilege affects disclosure, not preservation. Restrict access and assess privilege before producing records to another party.
When can texts under a legal hold be deleted?
Only after counsel authorizes release and confirms that no other preservation or retention obligation applies. A routine deletion schedule does not override an active legal hold.
Does iPlum text archiving replace a legal hold?
No. Archiving retains messages for the applicable plan period. Your firm must still identify relevant records, issue preservation instructions, and arrange retention for the full duration of the hold.
Prepare your firm’s client correspondence for future review with iPlum
Your firm should be able to revisit client correspondence when a dispute requires it.
And, waiting until litigation begins can leave attorneys searching for messages that clients or former employees have already deleted.
A defined preservation process starts with knowing where relevant conversations occur and how your firm retains them. iPlum provides extended text archiving, shared conversation access, and call recording features that your firm can incorporate into that process.
Get started with iPlum to establish those arrangements before your next preservation request.
