The explosive growth of text messaging presents unique opportunities and challenges for the litigator. This challenge is made greater by the merging of social and professional use in "texting" along with the tendency for most people to adopt a more casual tone in texts than they might in a letter conveyed on professional letterhead.
Like e-mails, texts also have metadata, thus raising preservation challenges, and often this metadata reveals potentially relevant and powerful information (think Tiger Woods). As with e-mails, information regarding the frequency or even the mere existence of a text message at a given time may itself be significant, as in a 2008 case involving a train engineer in California who was alleged to have been texting at the time of a fatal accident.[FOOTNOTE 1]
In addition, depending on the format of the message, some texts, like e-mails, may contain attachments of other electronically stored information aside from the content of the text.
Text messaging also has some unique attributes that make texts different from e-mails. For example, texts, unlike e-mails, typically travel from device to device the same way a cell telephone call travels, rather than over enterprise e-mail servers; text messages leave footprints that can reveal the general geographic locations of the sender and recipient at the time of dispatch and receipt.[FOOTNOTE 2]
The collection and preservation of text messaging is much more difficult than most e-mails because it is device dependent and even carrier dependent since, with some services, like AT&T, the text may be preserved on a subscriber identity module card small chip that contains information such as text messages and contacts. With other providers, a SIM card may not be available, and the data must be taken directly from the device.
In almost all instances, a litigator will need to have the device itself available, unlike e-mails that can typically be collected from a central server or from a user's hard drive.
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Source: Law.com
By: Alan M. Winchester and Russell E. Maines
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