Text Messages are Hard Evidence
It used to be that making a document took real work. Either manually putting pen to paper or using a mechanical typewriter was labor intensive and inherently limited the volume of written material that anybody could be bothered to regularly generate. When the rules of evidence were written, asking a company to turn over “all documents or communications about X” might have meant a laborious search of file cabinets or banker’s boxes, but it was a search that could be done by humans.
Needless to say, that’s not the world that we live in now.
While the legal profession has largely adapted to the proliferation of email correspondence, developing standard production formats and search methodologists, when it comes to other forms of electronic correspondence, the situation is not nearly as clear. Text messages in particular have a set of characteristics that seem almost tailor made to keep lawyers up at night.
First, text messages are important. For reasons that you’d need a psychiatrist or UX designer to explain, people are often vastly more candid in text message correspondence than they are in email. So, you can’t simply ignore text messages without potentially ignoring a huge swath of critical evidence.
Second, text messages are often outside of a client’s immediate control. While most businesses maintain control over their employee’s corporate email, often text messages reside on individual phones. Physically collecting (or even remotely imaging) those phones can be cumbersome and internally difficult, particularly when it comes to senior management.
Third, even once the phones are physically (or virtually collected), the actual processing and review of text messages is far from uniform and is often a cumbersome mess. Unlike email, where each messages tends to be somewhat self-contained and often quotes from prior messages for useful context, a single text message is often a totally inscrutable thing. “Yeah, he knew what u meant” might be a pivotal admission in the proper context, but in isolation is almost impossible to decipher.
Because of this, vendors have come up with a variety of ways of bunching together text messages that are close together in time. These can be helpful but are not a silver bullet, in part because text message conversations are often highly sporadic and asynchronous. People may send message to each other in a rapid-fire fashion only to stop and resume the conversation hours or days later depending on what else is going on in their lives.
Fourth, because of the lack of a clear beginning and end for text communications, there is no clear protocol for what a text message “search” looks like. Boolean keyword searches work well enough for long email threads, but the likelihood of a search term hitting on any individual text message is quite small. And to compound matters, people tend to abbreviate or flat out misspell words far more frequently in text communications.
Fifth, because of the technical issues and cost involved in collection, many lawyers shortcut matters by relying upon screenshots of text messages produced by their clients. While this can be acceptable – not every case justifies hundreds of thousands of dollars in eDiscovery costs – screenshots of text messages can be easily faked or manipulated. Even leaving aside Photoshop or other image editing tools, by altering the name of a contact in the phone’s contact list, a client can make a text message appear to have come from anyone.
What’s the only thing worse than a discovery collection of text messages? Well, you could just give the jury your client’s cell phone and let them root around in there. This sounds stupid, but no more stupid than the facts of Jackson v. United States. [1] Let’s let the appellate court describe it:
A T–Mobile Google cell phone with a dead battery was introduced into evidence at the joint trial of appellant Tyrone C. Jackson and his co-defendant, Alex Dickens, its owner. The cell phone was given to the jury along with other evidence to have during deliberations.
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After deliberating for several days and sending multiple notes to the court, the jury sent a note asking: “Are the electronic contacts on Alex Dickens's cell phone admissible, such as contact lists etc.?” Before responding, the court conferred with the parties, none of which had reviewed the contents of Dickens's cell phone prior to trial because the phone's battery was dead.
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At appellant counsel's suggestion, the court recalled the jury and posed an additional question: “[w]ith regards to the cell phone, beyond the contacts, did the jury look at any other part of the cell phone?” The foreperson responded, “Yes, yes.” The court then decided to allow the parties to figure out how to charge the phone and examine its contents overnight. [2]
This obviously raises all sorts of questions, including: 1) How do lawyers in DC respond to email if they don’t know how to charge a cell phone? and 2) What precisely was the jury intended to do with a dead cell phone in the jury room? Admire it? Dust it for fingerprints?
The trial court did not answer these questions. Nor did it check the courthouse for gas leaks, which I might considered under the circumstances. Instead, it issued a curative instruction that the jury was to disregard everything they’d learned from the phone. On appeal, the appellate court affirmed.
So that’s obviously weird, but surely it could not have happened more than once? Nope! In Hope v. State, [3] a defendant was sentenced to 80 years in jail for felony distribution of methamphetamines after jurors read text messages “previously undiscovered by the state and defense.” Apparently, there are whole swaths of the criminal bar where “maybe this phone would turn on if we plugged it in” counts as an arcane piece of technical knowledge. Like the DC appellate court, the Indiana Appeals Court was unsympathetic to a defendant that allowed an entire phone to go into evidence without objection.
And a similar result was reached in People v. Garrison, [4] where “two of the cell phones admitted, which both the prosecution and defense believed had dead batteries, were somehow turned on by the jury, allowing the jury access to information on the phones.”
So, if text messages are a pain to deal with and tossing cell phones into the jury room is not a great option, what can you do? A few things.
First, be sure to negotiate specific protocols when it comes to text collection in discovery. Agreeing to do a “reasonable search” of texts or accepting the other side’s assurance that they will do so is a bit like ordering “some food” at a restaurant –” God only knows what you’ll ultimately get.
Second, don’t assume that every discovery vendor is the same when it comes to text message review. Some will give you a lot of flexibility when it comes to clustering and searching message threads. Others will make the process expensive and unworkable. And if you’re stuck with a terrible review tool, consider exporting all messages exchanged between unique numbers as spreadsheets with each sequential message as a new row. This is more than you’d typically agree to produce, but it can be an extremely fast and efficient way to review large quantities of texts.
And finally, if your client sends you a screenshot of a case-cracking text, check it over carefully before you think about using it. The last thing you want is to be the victim of a client who hasn’t thought through the consequences of a little light forgery.
[1] 97 A.3d 80 (D.C. App. 2014).
[2] Id. at 81-83.
[3] 903 N.E. 2d 977 (Ind. App. 2009).
[4] 303 P.3d 117 (Col. Appl. 2012).
