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.

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