Where are my keys, I lost my phone
Courts expect parties to preserve and produce digital evidence. The problem? Lawyers don't know how.
My age, plus or minus eighteen months, in a single sentence:
When I got my first cell phone, most of my friends had pagers.
Motorola. Flip phone. Dark gray. Went about four days on a single charge. My dad sat me down and discussed “roaming” charges before handing it over. I hadn’t asked for the thing, but I took it seriously.
Texting began to exist, by the time I left college; each message cost a quarter1. By the time I graduated from law school, firm-supplied blackberries - which could send and receive emails, somehow, before Steve Jobs found a way to jam the internet into phones through the head phone jack2 - were starting to be replaced by the first generation of iPhones.
The median age for practicing attorneys in the United States is forty-six. Although roughly half of the profession started practicing before learning of the power of a post-last-call “u up?,” the other half has been texting since before autocorrect.
And the vast majority of us would still prefer to pretend that text messages don’t exist. Ask a lawyer, while they’re standing there looking at you — no Google — “What’s the best way to make sure that text messages are preserved, in response to a litigation hold letter?3”
“Can they be subpoenad from a carrier?”
“If my employees text, but on their personal phones, do I have to produce that? How do I make sure they’ve given me everything?”
“During an internal investigation, we took our employee’s company-provided cell phone. Now what?”
After a twenty year trial period during which judges, like attorneys, have largely been willing to pretend that text messages don’t exist and might simply go away, the tide has turned. Big time.
In 2024, the Delaware Chancery Court4 sanctioned a defendant for failing to produce text messages from its employees’ personal devices. These messages, the defendant argued, had been “lost” before discovery began when the employees changed phones, or providers, or left employment.
The court was less than charmed by this argument. Defendant was on notice of the potential for suit, and so had a duty to preserve data. Even on employee phones, summing things up almost in the language of a movie trailer: “[i]n a world where people primarily communicate using personal devices, it will almost always be necessary to image or backup data from phones.5”
The United States District Court for the District of Minnesota was also not willing to shrug and dismiss text messages as fundamentally evanescent by nature. In a case involving allegations of insurance fraud, the defendant claimed she could not produce texts because her phone “automatically” deleted all her texts older than a year old.6 Another witness associated with the defendant changed providers, and “lost” his messages. Not cool, said Magistrate Judge Shannon G. Elkins.7
In a case in the Southern District of New York, a plaintiff proved defendant had destroyed or failed to produce certain relevant text messages, because the messages produced included “reactions” to the absent texts:
“Text messages produced during discovery reveal [parties] ‘reacted’ to multiple text messages they exchanged. […] . A ‘reaction,’ formally a ‘tapback’ (hereinafter ‘reaction’) is a way for iPhone users to respond to a text message with an exclamation, laughter, a heart, or even an emoji.
A user reacts to a specific text message in a conversation and only one reaction can be added to a message. Everyone who is a part of the conversation can see the specific message and its accompanying reaction, even if someone is not an iPhone user.
Since users can see the specific message that a reaction was attached to, we know that certain texts exist even if the original message was not produced in discovery. [For example] [o]n January 4, 2023, [Employee] reacted with laughter to the following text message: ‘YOU’RE A WHOREEEEEE [sic] TRIED TO SLEEP WITH THE BOSS FOU...”’. […] Likewise, [Witness] reacted with ‘emphasized’ to the following text message: ‘She’s too much man,’ [and] reacted with laughter to the following text message: ‘one moment they were swimming with the beluga whales the next moment they’re suing each other.8’”
Similarly, in the same court, a judge held that a plaintiff, suing for injuries sustained while being forcibly removed from Madison Square Garden had an obligation to preserve text messages and data from the cell phone he owned at the time of the incident, despite his desire for an “upgrade” and his perception that the existing phone was “breaking.9”
Steps should have been taken to preserve the contents of the phone, the court reasoned, as “in 201710 and even earlier… lawyers11 would often image client’s cell phones to ensure that relevant data was preserved, even in cases that were not focused on issues surrounding text message communications.”
And the above were the cases I was able to find, while I ate my lunch. A small lunch. It was an orange, actually, and a cup of coffee, still cold from this morning.
Let’s not bicker over the definition of lunch.
There are so many more important things to do. Like preserving text messages.
I am, perhaps, a bog mummy. Please do not remove me from the peat. You’ll be shocked how rapidly I dry out and lose my plump, life-like appearance.
This is science.
The best answer to questions like these — when posed suddenly, and non-apocryphally, and for the love of god outside a courtroom — is “I don’t know, but I do know who to ask.”
This is, I understand, a scary court with complicated rules for inexplicable corporations.
Goldstein v. Denner, 310 A.3d 548, 579 (Del. Ch.), cert. denied, No. 2020-1061-JTL, 2024 WL 776033 (Del. Ch. Feb. 26, 2024), and appeal refused, 346 A.3d 1123 (Del. 2024)
Great Am. Ins. Co. v. Twin Cities Dance & Ent. Co., LLC, No. 23-CV-767 (NEB/SGE), 2025 WL 1754485, at *8 (D. Minn. Mar. 5, 2025), report and recommendation adopted sub nom. Great Am. Ins. Co. v. Twin Cities Dance & Ent., LLC, No. 23-CV-767 (NEB/SGE), 2025 WL 1772802 (D. Minn. June 27, 2025).
This is, of course, a paraphrase.
Adler v. Sonotec US Inc., No. 23-CV-1634 (GRB) (ST), 2025 WL 2614993, at *4 (E.D.N.Y. Sept. 10, 2025)
Plaintiff described the reason he discarded the old phone as follows “[he] simply stated that ‘sometimes ... numbers come up on’ the screen and that ‘sooner or later it[’s] going to go blank.’ Oakley v. MSG Networks, Inc., 792 F. Supp. 3d 377, 391 (S.D.N.Y. 2025)
I am a bog mummy. See supra, note 1.
I have not met these lawyers.