Text Messaging and Other Real-Time Electronic Communications

ESI Protocols: Courts Hold Parties to Account for Failing to Comply with the Protocols They Negotiated

May 19 2023

To resolve electronic discovery issues early in legal proceedings, parties often negotiate ESI protocols that define the required formats of production, outline the scope of record preservation required for the matter, and address key issues regarding privilege, confidentiality, and other key discovery considerations. But what happens when parties establish requirements in their ESI protocols that they later cannot fulfill? Three recent case opinions reflect how courts can react negatively to such situations.

Have Enterprise Collaboration Tools Made Every Day “Casual Friday” When It Comes to Electronic Communications?

Mar 10 2023

Employees ten years ago could not have anticipated how quickly and completely our workplaces have evolved over the past decade. In the aftermath of the global pandemic, significant numbers of employees have transitioned to telecommuting for some or all of their workweeks. The enterprise collaboration platforms adopted by many workplaces to facilitate this transition include a variety of electronic communication tools through which employees may communicate in a less mindful style than they would use in e-mails or printed correspondence, which, in turn, has created additional risks related to communications created, sent, and stored through these tools.

425 Business Article – “Collaboration Conundrum: Casual Connectivity Can Create Legal Risks”

Dec 16 2022

Reflecting on the new enterprise collaboration and remote work technologies adopted by many employers, Julie Anne Halter (Partner and e-DAT Practice Group Co-Chair) outlines a number of related legal consideration and risks associated with these technologies in a 425 Business article published this week.

First Pittsburgh “Under the Wire” CLE Seminar Features Presentation on E-Discovery “Hot Topics”

Nov 18 2022

The Pittsburgh office of K&L Gates recently hosted its first “Under the Wire” CLE seminar on November 15th, 2022. The CLE seminar was the first of a new series of in-person CLE events hosted at the K&L Gates Pittsburgh office.

At the inaugural seminar, Daniel Miller (a partner in our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Laura Veith (an associate focusing on commercial litigation) presented on a number of e-discovery “hot topics.” The presentation emphasized how record preservation and collection efforts must adapt in light of clients’ increasing use of new technologies, including mobile devices and applications present on those devices, ephemeral messaging, and enterprise collaboration platforms, such as Microsoft Teams and Slack.

Attorney Mindfulness When Addressing Emails and Texts: ABA Formal Opinion Provides Ethical Guidance to Lawyers on Electronic Communications

Nov 11 2022

In their roles as advisors, advocates, counselors, negotiators, and client representatives, lawyers communicate extensively though electronic means, particularly email and increasingly text messages. However, the fact that use of these electronic communication tools is commonplace in legal practice doesn’t mean that attorneys shouldn’t exercise caution when crafting their communications. The American Bar Association (“ABA”) Standing Committee on Ethics and Professional Responsibility published a formal opinion this month that advises lawyers to refrain generally from including their clients on emails and texts sent to opposing counsel.

Electronic Discovery Institute Article – “The New e-Discovery Wild West: Slack, Teams, Zoom, and Other Collaboration Technologies”

Oct 28 2022

The pandemic has spawned many new and exciting innovations, but many of those innovations have also created new risks. One such risk — and often a very material one — is that employees working at home have created a new “Wild West” of e-discovery and data storage, where pandemic pioneers working in their homestead offices may have inadvertently escaped the well-controlled data storage environment in place in their workplace.

K&L Gates Arbitration World Podcast: Virtual Collaboration Tools and their e-Discovery Implications in Arbitration and Litigation

Oct 14 2022

In a recent K&L Gates Arbitration World podcast, Julie Anne Halter (a partner in our Seattle office and co-chair of our e-Discovery Analysis & Technology (“e-DAT”) practice group) and Martin King (a partner in our London office who focuses on international arbitration and complex commercial litigation and disputes) discussed virtual collaboration tools like Slack and Microsoft Teams and the e-discovery challenges, opportunities, and pitfalls these tools may present in the context of arbitration and litigation

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Dec 28 2021

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Jun 23 2021

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Measured Wealth Private Client, Grp., LLC v. Foster (S.D. Fla., Mar. 2021)

Key Insight: Plaintiff filed a Motion to Compel Forensic Examination to permit inspection of the Defendant’s cellular phone. Specifically, the Plaintiff sought iMessages and text messages for a 12-month period. The Defendant asserted that the temporal scope of the messages sought was too broad, the messages could be obtained from other sources, and the examination of the phone for such a long time period was a “mere fishing expedition”.

The Court directed that the forensic examination proceed with an agreed upon independent expert to examine a forensic image of the phone with the Plaintiff paying for the initial fees and costs for doing so. In such an image was not feasible, then the expert was to acquire as much data as possible from the device to allow for the recovery of the iMessages and text messages. The Court noted that the Defendant had been “obstructionist” in responding to Plaintiff’s initial discovery requests (which sought the above described messages), and expressed concern about the Defendant providing complete production of all requested documents in the litigation.

Nature of Case: Employment

Electronic Data Involved: Text Messages, iMessages, Cellular Phone

Case Summary

Tag:Text Messaging and Other Real-Time Electronic Communications