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Text messages can document contractual commitments, disputed instructions, and other exchanges central to litigation.
Their evidentiary value, however, depends on preserving the conversation's content, context, and available identifying information.
For law firms, retaining selected screenshots is not sufficient preparation for text message eDiscovery. Incomplete threads, omitted attachments, and automatic deletion can complicate efforts to establish what was communicated, when, and between whom.
Thus, your firm needs a defined process for identifying relevant mobile conversations, preserving the underlying records, and preparing them for legal review.
The article discusses when preservation obligations arise, which information attorneys should retain, and how to prepare documents for production.
It also explains how iPlum's business text archiving can form part of your firm's communication retention procedures.
Table of Contents
1. Which mobile conversations should your firm preserve for litigation?
2. How should your firm preserve text messages for eDiscovery?
3. How should your firm prepare preserved texts for review and production?
4. How can iPlum prepare your firm's business texts for future eDiscovery?
5. Text message eDiscovery: frequently asked questions
6. Start archiving your firm's client texts with iPlum
Which mobile conversations should your firm preserve for litigation?
Your firm should preserve mobile conversations relevant to the dispute, based on the claims, defenses, and reasonably anticipated issues.
Relevance depends on the substance of an exchange, rather than the device or application used to conduct it.
The following categories provide a starting point for identifying those conversations.
Messages documenting the disputed events
Preserve exchanges concerning the agreement, transaction, instructions, or incident underlying the dispute. Relevant texts could establish what participants agreed to, who authorized an action, or when an individual received particular information.
For instance, a contractual dispute could require messages about proposed terms, subsequent changes, performance, and objections. Your assessment should extend beyond the specific message a client considers favorable to their position.
Related exchanges that explain the conversation's context
Earlier and subsequent messages can explain an ambiguous statement, qualify an instruction, or establish the sequence of events. Relevant group conversations and exchanges with other participants can also provide necessary context.
Therefore, identify the surrounding communications necessary for an accurate interpretation of the disputed exchange. Preserve associated attachments, photographs, and voice messages where they form part of that record.
Relevant business conversations on personal accounts
Employees and clients can discuss business through personal SMS, iMessage, WhatsApp, or other applications. Those conversations require assessment when their content relates to the dispute.
Ask which accounts participants used and whether they moved the discussion between services. Then identify the devices, account holders, and available copies associated with those exchanges.
Relevant attorney-client exchanges requiring privilege review
Preservation and disclosure are separate decisions. Relevant communications involving your firm must be preserved even when the attorney-client privilege could protect them from disclosure.
Identify these exchanges for privilege review before production. An attorney’s participation alone does not establish that the entire conversation is privileged.
How should your firm preserve text messages for eDiscovery?
After identifying relevant conversations, your firm must protect the records from deletion or alteration and establish a documented collection process.
The following steps address those concerns and preserve the information needed for subsequent review.
Suspend automatic deletion and disappearing messages
Issue written preservation instructions to the individuals responsible for relevant devices and accounts. Specify which conversations require protection and direct recipients to suspend settings that automatically delete relevant messages.
Also address actions that could affect existing records, such as replacing a handset, resetting a device, uninstalling an application, or closing an account. Clients should consult counsel before taking those actions.
Then confirm that recipients have implemented the instructions. If a setting cannot be changed, arrange an appropriate collection method before the affected records expire.
Preserve message content, attachments, and available metadata
Preserve the relevant conversation in sequence, together with associated photographs, documents, audio files, and other attachments. A message referring to an attached document provides an incomplete record if the document is absent.
Retain available metadata, such as sender and recipient identifiers, timestamps, and group participants. Saved contact names alone can create uncertainty about who participated.
Furthermore, record the time zone associated with displayed timestamps where available. Differences between device settings and exported records can complicate the chronology if reviewers do not account for them.
Select a collection method appropriate to the evidence
Screenshots can serve as an initial reference but may omit metadata, attachments, and portions of a conversation. Your firm should assess whether an export preserves the information required for the dispute.
Before collecting messages, confirm what the chosen method extracts and how it presents participants, dates, and associated files. Preserve the original export separately from copies prepared for review.
If authenticity is disputed, deleted messages require examination, or the application restricts exports, consult a qualified forensic examiner. Avoid attempting recovery procedures that could alter the source evidence.
Document collection and subsequent transfers
Create a collection record identifying the source device or account, the collector, the date, and the method used. Note any technical limitations or unavailable content identified during collection.
Then document subsequent transfers and restrict access to authorized individuals. Preserve an unaltered copy of the collected material and use separate working copies for review, annotation, or redaction.
These records establish the chain of custody and provide a documented basis for explaining how the messages were obtained and maintained.
How should your firm prepare preserved texts for review and production?
Preserving messages establishes the record your firm will examine.
Before disclosing those records, however, attorneys must assess completeness, determine what is responsive, and address any privilege issues.
Your review should progress from checking the collected conversations to preparing the records in the required production format, as explained below.
Check for incomplete threads and missing attachments
Compare the collected messages against the participants, accounts, and date ranges identified during preservation.
In addition, confirm that the export contains both sides of the relevant exchanges and presents them in chronological order.
Also, examine references to photographs, documents, voice messages, and group discussions. If a message refers to an attachment that does not appear in the collection, investigate whether the collection method excluded it.
Furthermore, record any unresolved omissions and the steps taken to investigate them. An unexplained break in a conversation warrants further examination before your firm treats the collection as complete.
Assess relevance and privilege before disclosure
Review the collected messages against the discovery requests and the applicable scope of discovery.
A preserved conversation can contain responsive evidence alongside unrelated personal information or privileged legal advice.
Attorneys should also determine which records require production, which require redaction, and which should be withheld on an appropriate legal basis. Prepare a privilege log where required by the governing rules or court order.
Prepare messages in the required production format
Federal Rule of Civil Procedure 34 permits requests to specify a production format.
If no format is specified, electronically stored information generally must be produced as ordinarily maintained or in a reasonably usable form.
Address format requirements before converting the records. For text conversations, consider how the output presents participants, timestamps, message sequence, and associated attachments.
Finally, inspect the production files themselves. Confirm that recipients can open them, read the conversations, and associate attachments with the relevant messages.
While at it, record what your firm produced and retain the corresponding preserved originals.
How can iPlum prepare your firm's business texts for future eDiscovery?
Your firm can establish an archiving process for its client correspondence before a preservation request is made.
A designated business number, account administration, and retrievable message records provide the foundation.
iPlum provides these capabilities for conversations conducted through its service.
Your firm can incorporate them into the preservation and review procedures discussed above as follows.
Assign attorneys' business numbers that your firm administers
iPlum’s multi-user account gives your firm administrative access to attorneys’ business lines and centralized text archives. Administrators can add users, manage numbers, and restrict permissions for specific features.
In addition, attorneys can use their assigned business numbers on their existing smartphones, separating client exchanges from personal texts.
As a result, your firm can retrieve archived iPlum conversations for preservation and legal review rather than request screenshots from individual attorneys.
Retain business texts for up to 10 years
The iPlum Enterprise plan allows you to archive text messages for 10 years on a rolling basis for active accounts.
That way, your firm can retrieve earlier client correspondence when a dispute arises. Written instructions, approvals, and other exchanges remain available in the archive even when their relevance emerges months or years later.
Export client texts for legal review
iPlum allows authorized users to download message logs containing text content as CSV files. The portal organizes Usage Reports by user and month, providing your firm with a clear starting point for locating relevant exchanges.
Attorneys can use those exported records to examine client instructions, establish a chronology, and assess relevance and privilege during legal review.
Protect archived messages from alteration
iPlum offers WORM storage, which prevents retained records from being rewritten or erased during their retention period.
Your firm, therefore, has an unchanged archival record of client exchanges to examine when questions arise about what was communicated.
It is important to note, though, that encryption and archiving address separate needs: encryption protects confidentiality, while archiving preserves records for later retrieval. WORM storage adds protection against alteration of those retained records.
Text message eDiscovery: frequently asked questions
Are screenshots sufficient for text message eDiscovery?
Not always. Screenshots can omit attachments, timestamps, participant details, and surrounding messages. Additional collection is necessary when screenshots do not preserve the information required for the dispute.
Do business texts on personal phones require preservation?
Yes, if they are relevant and a preservation obligation applies. Using a personal phone does not exempt business conversations from preservation.
Must privileged text messages be preserved?
Yes. Privilege can protect messages from disclosure, but it does not eliminate preservation obligations. Attorneys should assess privilege before producing relevant conversations.
Does a text archive replace a litigation hold?
No. An archive stores messages for a defined period. A litigation hold requires that relevant records be preserved until the obligation ends, even beyond routine retention periods.
Start archiving your firm's client texts with iPlum
Your firm's ability to retrieve client correspondence should begin with how it manages those conversations.
A designated business number and automatic text archiving establish a record before a dispute demands examination.
iPlum gives attorneys business numbers on their existing smartphones, with administrative access for your firm. Its Enterprise plan provides up to 10 years of text archiving, WORM storage, and message exports for review.
Together, these features give your firm an accessible record of communication conducted through iPlum.
Get started with iPlum to put business texting and long-term archiving into your firm’s client communication process, starting with your next conversation.
