Publications & Presentations
February 27, 2018
Employers used to worry about the unprofessional—and potentially damaging—things workers would say to one another over e-mail. Now they can add texts to the list of places to check for unsavory content.

When companies have to gather information for lawsuits, "text messaging is the new frontier" in electronic discovery, also known as e-discovery, according to Judge Andrew Peck of the U.S. District Court for the Southern District of New York.

Discovery is that phase of litigation when both parties make information relevant to a lawsuit available to the other side. Since most information inside an organization is never transferred to paper, most discovery is e-discovery, observed Aaron Crews, chief data analytics officer for Littler in Sacramento, Calif. Employees lately seem more aware that e-mail can become public; they are less likely to write something in an e-mail if they'd be embarrassed for their mother to see it, Peck told SHRM Online. But he's noticing more ill-conceived texts introduced as evidence.  
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One way to reduce risk is for the employer to let an employee bring a personal phone to work but provide a professional phone for the individual to conduct business on, and instruct the worker to keep the personal and professional separate, noted Charles Thompson, an attorney with Polsinelli in San Francisco.

Subpoenas

But if they suspect there is information to be found in the texts on a personal phone, lawyers can obtain subpoenas to dig up relevant evidence.

If, for example, a supervisor has used his or her own phone to harass another employee or call workers off hours, making them do off-the-clock tasks, the plaintiff's attorney may subpoena that private device, Thompson said.

"There was a time when everyone thought, 'Ooh, my text is secret,' " he noted. Now software can recover old text messages.

Everything on the device can be subpoenaed, including texts, e-mails and images sent to or received from someone else. Sometimes it's difficult to obtain the devices, he said, but it can be done.

A text can be damning evidence, such as a message saying, "I saw you across the room today, and you looked lovely in your miniskirt," Thompson noted.


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