Spoliation of Text Messages: Preservation Duties, Risks and Remedies

Text messages are the evidence most likely to disappear between the day a dispute starts and the day someone asks for them. Phones get upgraded, retention settings quietly delete old threads, and disappearing-message timers do exactly what they promise. When that happens after the duty to preserve has attached, the conversation turns to spoliation of text messages, and the consequences can range from curative measures to an adverse inference.

This article explains when the duty to preserve texts begins, the specific ways texts get lost, how federal Rule 37(e) analyzes lost ESI, how to protect your own client’s messages, and what case teams typically do when messages go missing on either side. State courts apply their own spoliation standards, so treat the federal framework as a reference point and confirm the rule that governs your matter.

When does the duty to preserve text messages begin?

It generally begins when litigation is reasonably anticipated, and it reaches relevant messages within a party’s possession, custody or control. That is often before anything is filed: a demand letter, a threat of suit, a separation or an incident that commonly leads to claims can all trigger it. A party planning to sue usually anticipates litigation earlier than the party being sued.

The scope covers relevant messages wherever the party controls them: the current phone, an old phone in a drawer, a synced tablet or computer, and cloud backups. Counsel’s own obligations run alongside the client’s. ABA Model Rule 3.4(a) prohibits unlawfully obstructing another party’s access to evidence or unlawfully altering, destroying or concealing material with potential evidentiary value, and counseling or assisting anyone else to do so. Our litigation hold letter guide covers how to put the duty in writing.

How do text messages actually get lost?

Rarely through dramatic deletion. Much of the loss comes from settings, upgrades and sync behavior that the phone’s owner never thinks about.

• Retention settings. Some phones can be set to keep messages for a limited period, such as 30 days or one year, and then delete them automatically.
• Disappearing messages. WhatsApp, Signal and other apps offer timers that delete messages after a set period.
• Upgrades, trade-ins and resets. A new phone set up without a complete transfer, or an old phone reset for trade-in, takes its messages with it.
• Sync deletions. When message sync is on, deleting a thread on one device can delete it everywhere, including a computer.
• Storage cleanup. Clearing large threads or old conversations to free space removes messages and attachments together.
• Lost or damaged phones with no recent backup.
• App removal or account deactivation, which can take app-based chats with it.
• Organization-managed phones wiped when an employee leaves.

What does Rule 37(e) require before a court imposes consequences?

Rule 37(e) applies only when four threshold conditions are met: ESI that should have been preserved in the anticipation or conduct of litigation is lost, because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery. If those are met, the rule provides two tiers.

Three details shape many text message disputes:

• Replacement comes first. Texts have two ends. The other participant’s phone, a backup, a synced computer or a co-parenting app record may restore what one side lost, and if so, the rule’s threshold may not be met.
• Reasonable, not perfect. The 2015 committee note explains that the rule calls for reasonable steps, not perfection, and that a court may consider a party’s sophistication. Individual litigants may be less familiar with preservation duties than organizations.
• Curative measures vary. The committee note describes options such as allowing the parties to present evidence and argument to the jury about the loss.

State standards differ, including on the level of fault required for an adverse inference, so the federal tiers may not map directly onto a state family, housing or civil court.

How do you preserve your own client’s text messages?

Change the settings, keep the devices and collect a copy now. The best defense to a spoliation argument is a dated record showing that reasonable steps were taken early.

• Set message history to be kept indefinitely on every phone and messaging app
• Turn off disappearing-message timers in relevant chats going forward
• Keep the current phone and every prior phone; no trade-ins or resets without the firm’s sign-off
• Make a complete backup and keep it
• Collect native exports of relevant threads now, and store the originals untouched
• Preserve co-parenting app records and social media direct messages
• Do not delete threads, contacts or attachments, even unrelated content in a relevant conversation
• Record each step and the date it was taken

Collection is preservation. Evidence Helper keeps each submitted original untouched and SHA-256 hashes it on arrival, which gives the file a fixed record of what the client delivered. Platform-specific export steps are covered in our guides to exporting iMessages for litigation and WhatsApp evidence.

What makes preservation steps “reasonable” for text messages?

Rule 37(e) turns on whether reasonable steps were taken, so the useful question is what a court would see if it asked. Reasonableness depends on the facts, but for texts it usually comes down to timing, specificity and proof.

None of this dictates a particular outcome, but a file that can answer “what did you do, and when?” with documents rather than recollection is in a far stronger position.

What do teams do when the other side’s texts go missing?

They confirm the loss, look for replacements, measure the prejudice and confer before any motion. Whether to seek relief, and what to ask for, is the attorney’s decision.

1. Pin down the facts. Use interrogatories or deposition questions about devices, settings, backups and when and how the messages were lost.
2. Look for replacement sources. Check your client’s copy, other participants, backups, synced computers and app records. Carrier records may show dates, times and numbers but generally not content; see subpoenaing phone records.
3. Measure the prejudice. Identify what the missing messages likely covered, what substitutes exist and what cannot be proven without them.
4. Confer in writing. Propose practical remedies, such as a neutral forensic examination or a stipulation about the missing period.
5. Assemble the record. If the attorney decides to seek relief, the timeline, trigger date, preservation steps taken or skipped, replacement efforts and prejudice analysis form the core of the motion.

What if your own client has already lost messages?

Find out early, recover what you can and keep every response accurate. Investigate how and when the loss happened and document each recovery attempt. Places to check include:

• Computer backups and cloud backups, including older ones
• Tablets, laptops and desktop apps signed in to the same account
• A prior phone that was replaced but not yet reset
• App-level exports or archives, and co-parenting app records
• Screenshots or forwards the client made at the time

Discovery responses must describe what exists truthfully, and the Rule 26(g) certification and duties of candor apply. How and when to raise the loss with the other side is a judgment for the responsible attorney under the governing jurisdiction’s rules, and staff should escalate any discovered loss the same day.