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Tech Tip: Text Message Preservation

 

by Lawrence C. Datz

Consider text messages. Depending on your age and tech savvy, a first thought might be of what less-than-35-year-olds do, rather than pick up the phone.  For some Fellows, competency with email was bad enough, and text messages are another dimension.  But in the context of this “Tech Tip,” the consideration is evidence, whether it might be used for or against a client, an opposing party, a non-party witness, or an attorney.  (I do apologize for the latter reference and the precipitous imagery of fee disputes, bar complaints, and malpractice actions.)

The fact is text messaging is a reproduceable form of communication, just like letters, emails, voice mail, and even video.  The downside is that something bad might happen to text messages while on a phone or other device holding it or, worse yet, to the phone or device itself.  To prove or disprove something communicated by a text message, the “best evidence” is likely to be the text message itself.  Perhaps one has a duty to preserve text messages to prevent spoliation of evidence.  Consequently, preservation of text messages might be important for a myriad of reasons.

How many times has this happened?  A client tells his attorney that he preserved the text message which strengthens or supports the client’s claim or defense.  When asked if the client can preserve the text message for court, he says, “Oh, no problem.  I took a screenshot and will email it to you.”  The attorney examines the text message with some jubilation at the strength and clarity of the corroborating evidence, only later to be deflated to learn the text message was isolated from a series of text messages which undermine the client’s position.  If the text messages could have been examined together and in the context of each other, an evidentiary debacle might have been avoided.  Hence, text message preservation might be important to the attorney’s understanding of the case. 

Text messages may be preserved in a number of ways.  The tip here is to use inexpensive computer programs which create a backup of the text messages on a computer.  Depending on the situation and the attorney’s preference, the software may be used by the attorney or client.  A Google search likely will yield a variety of programs for Android and iPhone.  A meticulous client, (who happened to be a project manager for a major company), employed three such programs for his paternity and dissolution cases, involving a recent revelation that he was not the biological father of his four-year-old daughter.  Under the circumstances of the case, “iMazing” seemed to be the best. 

The program was designed for iPhone and easily downloads over the Internet.  The installation is simple.  Tech savvy is not required.  Once the program launches, the user is prompted to attach the iPhone or iPad to the computer by USB cord, i.e. the white cord that came with the device.  After clicking an icon to create a quick backup of the device, text messages can be exported to the computer in PDF format, making a copy.  For evidence, the desired messages can be printed individually or as a group.  A real bonus to the software is that it can be used for multiple devices and was not actually intended for litigation.  So, the user may make a complete backup of his or her device and copy everything to another device if the first one is lost or damaged.  I recommend this or similar software as a sensible backup for what is on your phone or tablet, in addition to its utility in practicing law in the modern world. 

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