Text-Messaging Evidence Seen as Increasingly Prone to ‘Serious Sanctions’

Text messages, and other forms of electronic messaging, “are increasingly the subject of significant court rulings, creating either huge risk or opportunity for serious sanctions (depending on which end of the issue the client finds itself),” said the Bryan Cave law firm in an analysis Friday. “Even if sanctions are not imposed or do not affect a merits-based determination of the claims, a party’s failure properly to account for text messages creates a significant distraction from the merits and costly collateral motion practice.” Sanctions decisions also are beginning to emerge “relating to less commonly known digital messaging applications,” said Bryan Cave. It cited a case in U.S. District Court for Arizona, FTC v. Noland, in which the senior management of a company under FTC investigation, Success by Media, began using “ephemeral” communication apps in messages designed to disappear quickly after receipt. Use of the apps “continued after an appointed receiver demanded that personnel preserve communications and even after a restraining order,” said the law firm. Former Success by Media executives also deleted the apps from their phones “the day before the phones were to be imaged to capture data,” it said: “The court imposed an adverse inference instruction as a sanction.” Legal scholars say adverse-inference instructions were developed on the premise that a party's intentional loss or destruction of evidence to prevent its use in litigation gives rise to a reasonable inference that the evidence was unfavorable to that party.