United States: Texts And Message Apps Are Changing Internal Investigations

Last Updated: August 18 2017
Article by Jessica K. Nall and Claire Johnson

It almost goes without saying that these days not all pertinent business-related communications can be found on corporate email servers. As we have increasingly seen in recent internal investigations, some of the most important written communications (especially between high-level executives) are more likely to be found in a place that most outside counsel have for years either ignored altogether or have considered untouchable — cellphone text messages. Though text messaging may be the most ubiquitous form of nonemail communication, other mobile communication platforms are also in frequent use in corporate America, including Telegram, Signal, Snapchat, Slack, WhatsApp and the like. The reverberations of this trend of executives and employees at all levels taking sensitive communications off email are being felt across industries, but particularly in highly regulated industries required to preserve business records. The near-universal use of these alternative forms of communication should prompt a major shift in how evidence is gathered and considered in internal corporate investigations.

Executives and employees use texts to communicate with business colleagues for all sorts of non-nefarious reasons. Texts and other mobile messages are easy, unobtrusive, and they can spur more instantaneous responses than emails. Text messages are also perceived as less likely to get lost in individuals' overflowing email inboxes. Importantly, text messages, unlike corporate emails, are perceived to be a casual, even private, mode of communication. Executives and employees wishing to have intimate, brief or "sensitive" (including potentially problematic) conversations may view texts as a safer and more ephemeral communication channel than corporate email, to say nothing of the many mobile communications formats that are designed to be truly ephemeral, such as Snapchat or Signal.

Texts, and messages in other mobile communications formats, by their nature are also much less likely to have been carefully drafted or well-considered before sending. The same lack of consideration that landed many executives in hot water in previous decades for indiscriminately describing problematic issues in email applies with even greater force to mobile messaging. Such messages are almost always shorter, more to the point, and lacking nuance than the average corporate email. Obviously, at the same time that they are a quick and effective form of communication, texts still represent the creation of a written record that can be used as evidence in any follow-on government investigation or civil litigation. And, like email, even if the person on one side of the conversation does not retain mobile communications, there is always a second source of the same information (the recipient) that is usually beyond the control of the counterpart to the communication.

Precisely due to its ubiquity, omitting this key communication stream from consideration in an internal corporate investigation presents serious risks. If text messages and other forms of messaging in use by employees and executives are not fully considered, an internal investigation result may be at best incomplete or at worst incorrect. The worst mistake is to assume that if communications are not found in corporate email that they did not occur, and draw inferences based on that assumption. Ideally, relevant text and other mobile communications should be collected and reviewed even before executives are interviewed, as has traditionally occurred with key emails.

Text and other mobile messages, however, can be both technologically and politically difficult to collect from individuals. And due to a patchwork of inconsistent corporate policies regarding their preservation and use, collecting those messages may present privacy considerations on behalf of the individuals who are using the alternative forms of messaging. Those difficulties make it more understandable that most internal investigators have traditionally been content to ignore their existence altogether and rely on more easily attainable, and searchable, corporate email. By their nature, text messages are more difficult to search using key words and other e-discovery shortcuts, and instead require a relatively more intense manual review to discern the meaning and import of conversations.

The issue of whether text and other mobile messages are corporate or personal records for purposes of the Fifth Amendment "act of production" doctrine is complex and hinges on an employee's reasonable expectation of privacy in the messages. If an employee's or executive's cellphone is owned or paid for, even in part, by the corporation, an individual may lose his or her expectation of privacy in text communication for purposes of the Fifth Amendment. See Couch v. United States, 409 U.S. 322, 336 (1973) ("We hold today that no Fourth or Fifth Amendment claim can prevail where, as in this case, there exists no legitimate expectation of privacy.").

The law on when an employee may be able to bar an employer from access to text messages is similarly unsettled. In the typical employee cellphone "reasonable expectation of privacy" fact pattern considered by the courts, an employer seeks texts sent from an employee's phone to defend itself against a wrongful termination suit. A federal court applying California privacy law held that a former employee had only a limited expectation of privacy in the use of his jointly owned cell phone, and so could not shield the metadata records of his phone calls and text messages from discovery by the employer. Mintz v. Mark Bartelstein & Assocs. Inc., 885 F. Supp. 2d 987, 999 (C.D. Cal. 2012). In discussing the employee's limited expectation of privacy, the court considered such factors as who paid for the phone plan (the employer), who purchased the phone (costs split between employer and employee), the original ownership of the phone number (the employee), the company phone policy and the employee's knowledge of that policy, and the company's knowledge that the employee was using the phone to make personal calls.

Not all courts consider those factors, however, and some have afforded a heightened expectation of privacy to the actual content of text messages, even on purely employer-owned devices, because "[c]ell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self-identification." City of Ontario, Cal. v. Quon, 560 U.S. 746, 760 (2010) (assuming that an employee, who sent texts from an employer-owned device that were reviewed and led to discipline, had an expectation of privacy in those messages). This heightened expectation of privacy, however, is by no means uniform and cannot be relied on in the investigation (or other) context.

Though business-related texts on corporate-owned cellphones may well be corporate records subject to standard preservation requirements during investigations and litigation, most corporations lack a uniform policy regarding the preservation (or deletion) of such messages or lack the technological means to easily collect them. Texts may thus escape the best efforts of in-house counsel placing corporate documents under litigation or investigation holds, potentially at the company's and individual's peril if relevant evidence is later shown to have been deleted after a hold was put in place.

The use of more ephemeral communication channels like Signal pose even more complex problems in internal investigations, as they might not be recoverable even if considered a corporate record. Executives using those channels should be wary, however. If an individual executive employs texts, emails, 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 record available to the defense if an ephemeral channel is used. And communication formats that are supposed to be ephemeral may in fact be preserved in some form or may, in rarer instances, be available on service of a subpoena to the software platform. Chat formats such as Slack and other instant messaging services present potentially similar complexities that are yet to be developed in internal investigation practices and in case law.

To avoid potential pitfalls with regard to texts and other mobile messages, we recommend the following considerations:

  1. Companies should devise, train employees about, and regularly enforce uniform policies regarding the ownership and/or funding of corporate cellphones and the preservation or deletion of employee text messages and other mobile messages on those phones.
  2. Companies should put in place collection methods for employee text and mobile messages that take into account employee privacy considerations while still permitting full access to documents that would be considered corporate records.
  3. Companies should carefully consider, and develop uniform and effective policies around, the corporate use of ephemeral forms of communication such as Telegram, Signal, WhatsApp and the like.
  4. Litigation and investigative holds should specifically call out relevant text and other ephemeral mobile messages for preservation, and any ephemeral communication modes should not be used once a hold is in place.
  5. Document gathering in internal investigations should prioritize collection and review of relevant text messages and other ephemeral messages from executives along with, or even at a higher priority than, corporate email, ideally before any interviews take place.

There is no doubt that text messages and other mobile messages as a communication tool among business colleagues are here to stay. If anything, these forms of communication are likely to become even more ubiquitous as time goes on. Accordingly, companies should put in place appropriate internal controls such as those outlined above as soon as practical, and these types of communications should be prioritized in evidence gathering during corporate internal investigations.

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.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
 
In association with
Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions