E-Discovery, Emails and Texts

Ohio State football coach Urban Meyer recently came under fire for efforts to rid his phone of any text messages older than a year. His request looked suspicious because he asked about the possibility of eliminating old text messages on the same day that his wife forwarded text messages from 2015 from the wife of one of his assistant coaches alleging that he had abused her.  An investigation concluded that, since Meyer’s phone had been issued by the university and the texts were work-related, it was illegal to eliminate those messages.  While Ohio State’s policy about record retention is vague, there is growing agreement about the need to preserve text messages in discovery.

The central series of cases on this topic stems from New York. In Zubulake v. UBS Warburg LLC, the plaintiff alleged that her employer engaged in discrimination when it failed to give her a promotion. The subject of Zubulake’s case may not be groundbreaking but the court’s treatment of discovery was. During discovery, Zubulake produced over 400 emails that she had preserved in support of her complaint, but her employer, a multinational financial service firm, was able to produce only 120. Zubulake and her attorneys became convinced that the company was withholding information, specifically electronically stored information, and argued that the company had a duty to back up and produce such information. The parties battled about what the company needed to produce; finally, after protracted litigation, the court ruled that not only did the company have a duty to preserve electronically stored information that might be relevant to future litigation, but also that the company was subject to an adverse inference (i.e. the inference that any lost or destroyed information would have helped the plaintiff) for failing to do so.

The Zubulake case has since been applied to cases involving text messages, with similar results. For example, in Ronnie Van Zant, Inc. v. Pyle, the plaintiff sought discovery of a series of texts concerning a disputed film script. The script had been produced by a screenwriter and co-writer who conducted all his business on his phone. The plaintiff subpoenaed texts between the screenwriter and his colleague, but, sometime after receiving the subpoena, the colleague got a new phone and did not transfer his texts. Even though neither the screenwriter nor his colleague were defendants, the court awarded an adverse inference against the defendant film company that had commissioned the script, saying it was “common sense” that the texts were in the film company’s control.

These cases serve as a cautionary tale: if you are involved in a controversy that might result in litigation (or even a controversy that may have some impact on your employment), think twice about deleting your texts and emails. The deletion may cause more problems than it solves.