It doesn't take a millennial to know that these days not all pertinent business-related communications are to be found on corporate e-mail servers. As we have increasingly seen in recent internal investigations, the most important written communications (especially between high-level executives), are now to be found in a place that most lawyers at the senior level have for years either ignored altogether or for some reason considered untouchable – cell phone text messages. The New York Times recently reported on the implications of this trend—which is hardly new— of executives at all levels taking sensitive communications off e-mail. See As Elites Switch to Texting, Watchdogs Fear Loss of Transparency.
The same potential loss of key communications from "the record" are present in internal corporate investigations where texts are left out of the investigation plan. If text messages and other forms of messaging are not fully considered, an internal investigation result may be at best incomplete or at worst incorrect. The worst mistake is when investigators assume that if communications are not found in corporate e-mail that they did not occur, and draw inferences based on that assumption. But text messages can be difficult to collect from individuals, and, due to a patchwork of inconsistent corporate policies regarding their preservation and use, may present privacy considerations on behalf of the individuals who are texting. Those difficulties begin to make it more understandable why most internal investigators would prefer to ignore their existence altogether and simply rely on easily attainable, and searchable, corporate e-mail.
Executives and employees may use texts to communicate with business colleagues for all sorts of non-nefarious reasons. Texts these days are considered a simple, non-obtrusive, but more urgent form of communication than e-mails. They are also somewhat less likely to get lost in individuals' overfull e-mail inboxes, so the sender may be more likely to expect a quick reply. Texts by their nature are also much less likely to have been carefully drafted or well-considered before sending, and executives wishing to have more "sensitive" (i.e., potentially problematic) conversations may view texts as a safer and more ephemeral communication channel than corporate e-mail. The same lack of consideration that landed many executives during the 1990s and early 2000s in hot water for "putting things in e-mail" now applies even more to text messaging. Where most individuals are still laboriously typing text messages on mobile devices, the messages are more likely to be shorter, to the point, and lacking nuance, than the average corporate e-mail. At the same time that they are a quick and effective form of communication, however, texts still represent the creation of a written record that can be evidence in any follow-on government investigation. And, like e-mail, even if the person on one side of the conversation does not retain text communications, there is always a second source of the same information (the recipient) that is usually beyond the control of the other party to the communication.
The issue of whether text messages are corporate or personal records for purposes of the Fifth Amendment "act of production" doctrine is a complex one—if a person's cell phone is owned or paid for, even in part, by the corporation, an individual may lose his or her expectation of privacy in the communication for purposes of the Fifth Amendment. Though under this analysis texts on corporate-owned cell phones may well be corporate records, most corporations lack a uniform policy regarding the preservation (or deletion) of such messages and texts may thus escape the best efforts of in-house counsel placing corporate documents under litigation or investigation holds.
The use of ephemeral text communication channels like Signal and Whatsapp may pose even more complex problems in internal investigations, as they may or may not be recoverable even if considered a corporate record. Executives using those channels should be wary, however. If an individual executive employs texts, e-mails, and also more rarely uses an ephemeral form of communication, an investigator may have reason to wonder why certain communications are "too sensitive" for the other frequently used modes of messaging. By the same token, communications that may someday be needed to provide an innocent explanation for certain actions by an individual may be lost from the defense record if an ephemeral channel is used.
To avoid these potential pitfalls, we recommend the following considerations:
- Corporations should devise, and enforce, uniform policies regarding the ownership and/or funding of corporate cell phones and the preservation or deletion of employee text messages on those phones;
- Litigation and Investigative Holds should specifically call out relevant text and other ephemeral messages for preservation;
- Document gathering in the internal investigation context should prioritize collection of relevant text messages and other ephemeral messages from executives along with, or even at a higher priority than, corporate e-mail.
- Carefully consider, and develop uniform and effective policies around the corporate use of (and suspension of, when necessary) more ephemeral forms of communication such as Telegram, Signal, Whatsapp, and the like.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
