Instant Messages in Litigation

Communications are one of the greatest unifying forces for civilization. The telegraph revolutionized the ability to share news and conduct business in 19th century; the telephone empowered people to speak across continents in the 20th century. In the 21st century, people can send personal and business communications from handheld devices wherever they have cell phone coverage, from emails, to text messages, to video calls.

Ediscovery textToday it is common for discovery requests to focus on multiple forms of communications beyond email. It is standard practice for requests for production to ask for instant messages on numerous messaging platforms, text messages on cell phones, social media posts, and voicemail. See, People for the Ethical Treatment of Animals, Inc. v. Dade City’s Wild Things, Inc., 2017 U.S. Dist. LEXIS 185635, at *3 (M.D. Fla. Nov. 9, 2017), for a request for production that sought all of these data types. The issue in a lawsuit is what was communicated by a party, which can be on multiple applications that could start in an email message, be continued in text messages, and finalized over instant messages.

Since the 2006 Amendments to the Federal Rules of Civil Procedure, “instant messages” have appeared in virtually every way imaginable in a lawsuit. Here are just a few examples:

  • Instant messages were excluded at trial in an employment case, because the content of the messages were unfairly prejudicial.1
  • Discovery over allegations of price-fixing of natural gas.2
  • Divorce after the husband saw instant messages sent by his wife to another man.3
  • Discovery requests including instant messages on attorney advice on patent infringement.4
  • Demonstrating authority to enter into a contract over instant message.5

There are many other examples of instant messages in litigation, especially in prosecution of solicitation and harassment cases. In addition to Gchat, iChat, Lotus Notes, and other chat formats, a recent update to Everlaw allows for the processing of Slack chat data. Individual and group chats can be viewed within Everlaw, as well as full contact lists.

Processing and Review of Instant Messages in a Data Set

Chat is just another form of discovery, and instant messages are just another form of data. After instant messages have been defensibly collected, the instant messages can be uploaded directly to Everlaw for review. Reviewing attorneys should review this data as they would any other file type on how the data relates to the claims or defenses of the lawsuit.

Understanding how people communicate on instant messages requires understanding what types of abbreviations they use to message. With that, the wrinkle that can appear with instant messages is “chatspeak” or “netspeak.” To decode this type of data will likely mean a more in-depth understand than just knowing that “LOL” means “Laugh Out Loud.”

If chat is at issue in a lawsuit, it is highly advisable to discuss with the client what chatspeak they use, which can then be incorporated into search terms. Persistent highlights could also be created to assist reviewing attorneys in finding chatspeak for issue coding.

IYSWIM

Lawsuits with instant messages are as varied as lawsuits with email or text messages. The important thing is to keep sight of the goals of analyzing instant messages in a case: how does the data support the claims or defenses in the lawsuit? Is it responsive to a request for production? If you see what I mean (“IYSWIM”), the goals of chat review are fundamentally the same as other discovery.

1Quinby v. WestLB AG, 2007 U.S. Dist. LEXIS 77040, at *5-6 (S.D.N.Y. Oct. 18, 2007).
2United States CFTC v. Amaranth Advisors, L.L.C., 554 F. Supp. 2d 523, 532-33 (S.D.N.Y. 2008).
3Curry v. Curry, No. A-2612-07T3, 2009 N.J. Super. Unpub. LEXIS 240, at *1-2 (Super. Ct. App. Div. Jan. 20, 2009).
4Duhn Oil Tool, Inc. v. Cooper Cameron Corp., 2009 U.S. Dist. LEXIS 100669, at *20-21 (E.D. Cal. Oct. 15, 2009).
5CX Dig. Media, Inc. v. Smoking Everywhere, Inc., 2011 U.S. Dist. LEXIS 29999, at *46-48 (S.D. Fla. Mar. 23, 2011).

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