Discoverability of an Employee’s Text Messages

Ever since remote work became a normal reality for corporate employees, it is not surprising to see an increase in the use of personal devices for business purposes. This means text messages on company-owned phones and personally owned phones that are used for business purposes can be a relevant data source in litigation. Indeed, courts have generally held that relevant text messages used for business communications should be preserved and are discoverable. See, e.g. Schnatter v. Papa John’s Int’l, Inc., No. CV 2018-0542-AGB, 2019 WL 194634, at *16 (Del. Ch. Jan. 15, 2019) (explaining that where employees or directors of a company “used personal accounts and devices to communicate about [company business], they should expect to provide that information to the Company.”); Paisley Park Enterprises, Inc. v. Boxill, 330 F.R.D. 226 (D. Minn. 2019) (ordering the payments of costs and a fine of $10,000 for failing to preserve text messages).

But what if a company does not have possession of an employee’s mobile device or claims it does not have control over such devices? A recent decision from the federal court in the Northern District of California addressed this issue.

Court Orders Defendant To Produce Text Messages From Employees’ Personal Devices

In Westin v. Docusign, Inc., No. 22-cv-00824-WHO, 2024 WL 3446924 (N.D. Cal. July 15, 2024), the court addressed the legal standard for when an employer has possession, custody or control over information on an employee’s personal mobile device. In this securities fraud class action, plaintiffs claim that Docusign made misrepresentations regarding its projected post-pandemic performance. Id. at *1.

One of the discovery issues before the court was plaintiffs wanted Docusign to produce text messages from certain employees. The court made clear that “[t]ext messages are discoverable materials” and that plaintiffs have shown that Docusign employees “conducted some business by text.”  Id. at *2.

In analyzing the dispute, the court stated that “[a] company has control over text messages if it has the legal right to obtain them upon demand, even if it does not currently possess them.” Id. (internal quotations omitted). The court found that Docusign had that legal right and therefore had control over the text messages at issue because Docusign’s employment agreements mandated that “if [employees] used any personal [device] ... to ... transmit any Company information, [they] agree to make a prompt and reasonable search for such information,” and Docusign “may have access to such personal [devices] ... to retrieve” it. Id. As such, the court concluded that Docusign has the legal right to obtain text messages and does not need to have control over the employees’ personal devices to have the right to obtain the text messages that plaintiffs seek. Id.

Key Takeaways:

• Text messages are discoverable when an employer issues mobile devices to its employees.
• Text messages are discoverable when an employee uses text messages for business purposes.
• Text messages can be discoverable on personally owned phones of employees if the company has the right to obtain the text messages that were used for business purposes even if the company does not have control or possession of the employee’s phone.
• Companies should consult with their legal and e-discovery counsel on preservation of text messages because courts continue to find the failure to take reasonable steps to preserve responsive text messages to be sanctionable.