Mobile data is discoverable — and easy to spoil
Text messages, chat-app threads, and the data riding alongside them are squarely within the reach of modern discovery. They are also among the easiest evidence to lose: phones auto-delete, get reset, and roll over their storage. Collecting them in a way that holds up takes a deliberate method and counsel's oversight from the start. This is informational, not legal advice; build the collection plan to your matter and jurisdiction.
The rules that govern collection
Federal Rule of Civil Procedure 34treats mobile ESI like any other discoverable material and calls for production in a reasonably usable form — which a screenshot, stripped of metadata, often is not. Rule 37(e) supplies the consequences: if messages that should have been preserved are lost because a party did not take reasonable steps, the court can order measures to cure the resulting prejudice, and on a finding of intent to deprive may instruct the jury to draw an adverse inference. The duty to preserve, as Zubulakeestablished, attaches when litigation is reasonably anticipated — and it falls on counsel, not just the client, to see that it is honored.
Why unsupervised self-collection is the trap
The tempting shortcut — let the client gather their own texts — is exactly the practice courts have punished. In DR Distributors, the court imposed substantial sanctions after counsel failed to supervise the client's self-collection and relevant chat-app messages were lost. The lesson is not that clients are dishonest; it is that self-collection without oversight is not a defensible method. Counsel has an affirmative duty to understand where the data lives, to direct a sound collection, and to verify it happened.
What a defensible collection looks like
- Preserve first. Suspend auto-delete, and issue a hold that names the devices, numbers, and messaging apps in play.
- Collect with method.Use a forensic or other validated acquisition that captures messages with their metadata and surrounding context — not curated screenshots.
- Document integrity. Record hash values and a chain of custody so the production can be authenticated later.
- Supervise. Counsel oversees and verifies the collection rather than delegating it wholesale to the custodian.
The hold comes first
Most spoliation problems are preservation problems wearing a collection costume. Get the litigation hold out early and make it specific to mobile devices and apps; a phone reset two weeks before production is far cheaper to prevent than to explain. A defensible collection done well also produces evidence you can authenticate — see chain of custody for litigators.
What this means for your matter
If text messages will matter, treat their collection as a litigation task with counsel in the loop, not an errand for the client. A defensible mobile collection — the kind e-discovery services for law firmsare built to deliver — protects both the evidence and the lawyer who has to certify the production.
Sources
- Legal Information Institute, Cornell Law School, Federal Rule of Civil Procedure 34 — Producing Documents, Electronically Stored Information. https://www.law.cornell.edu/rules/frcp/rule_34
- Legal Information Institute, Cornell Law School, Federal Rule of Civil Procedure 37 — Failure to Make Disclosures or to Cooperate in Discovery; Sanctions (37(e)). https://www.law.cornell.edu/rules/frcp/rule_37
- U.S. District Court for the Northern District of Illinois (Johnston, M.J.), DR Distributors, LLC v. 21 Century Smoking, Inc., 513 F. Supp. 3d 839 (N.D. Ill. 2021). https://www.govinfo.gov/app/details/USCOURTS-ilnd-3_12-cv-50324
- U.S. District Court for the Southern District of New York (Scheindlin, J.), Zubulake v. UBS Warburg LLC, 220 F.R.D. 212 (S.D.N.Y. 2003). https://en.wikipedia.org/wiki/Zubulake_v._UBS_Warburg
