Follow Up On Litigation Holds Aggressively

If your company’s employees regularly use personal devices to conduct business and your policies address retention of business-related information on those devices, including texts, then your litigation practices better include requesting relevant text messages from “key players” and following up on those requests. A Texas federal judge recently sanctioned a defendant company for failing to do so. The company had made an acquisition, and begun an aggressive force reduction including an employee of 27 years who claimed age discrimination. The plaintiff’s attorney sent a demand letter instructing the company to preserve all documents regarding the ex-employee’s claims, including “texts.” A deposed manager who selected the plaintiff for termination admitted to a partial reading of the demand letter, but not the part about preserving text messages. He admitted to sending texts but could not produce them because, he said, he regularly deletes texts within 48 hours. The judge devised a list of questions to answer when deciding whether to avoid sanctions and, as the writer of this article explains, “it was all downhill from there for the company.”