South Bend / Mishawaka, IN – Does it include text messages? The text message, once the exclusive tool used by teenagers and college students, has found its way into the business world. It is a great way to message someone, but did you know that text messages are also discoverable and in the world of litigation, if not handled properly, could subject an employer to costly sanctions if they are not preserved. So what should an employer be doing to protect itself?
The first step in the protection process is to manage the risk. This starts with an evaluation of the extent to which employees use text messages as part of the business communication process. It becomes important if your organization has adopted a “bring your own device” to work policy. In this instance, an organization should be establishing its rights (and protections) with regard to any company data on the personal device. Even a company without a “bring your own device” policy should consider having a policy that addresses the use of personal devices that are used for work purposes.
If in its investigation, an employer determines that text messages are being used for any business purpose, the organization should consider addressing the matter in its document retention policy. In that policy, the employer should consider a blanket prohibition of text messaging when using company-owned mobile devices (similar to the one used for emails). Whatever you do, when you become aware of text messaging among employees, address the issue in the document retention policy. (Don’t have one, better consider establishing one).
If a company becomes subject to a litigation hold, know that text messages used for business purposes, whether internally or externally, are subject to the hold. It is therefore prudent for the employer to have a plan in place that will preserve any potentially relevant text messages in order to avoid spoliation sanctions.
In order to help avoid the risks referred to above, it would be prudent for an employer to regularly survey employees use of text messages and other forms of “non-standard” communication, and make it a part of the company’s electronic device policy. It is also wise, when dealing with a litigation hold, to determine whether anyone is using text messages in a way that would affect the litigation hold. Doing nothing, when the information becomes known, is not an acceptable alternative.
DISCLAIMER: The material provided in this article is presented for informational purposes only and should not be acted upon without advice and counsel from an experienced attorney familiar with the facts of your specific situation.
Reference source: Valerie Diden Moore, Butler Snow LLP, J.D. Supra® Business Advisor, August 2014
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