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Gregory A. Neibarger and James M. Hinshaw Discuss Text Message Evidence Preservation and Court Admission in Indiana Lawyer


Bingham Greenebaum Doll LLP partners Gregory A. Neibarger and James M. Hinshaw discussed the importance of text message preservation and their resulting court admissions in the Indiana Lawyer recently.

Text messages are sent every minute of every day and often hold valuable and sometimes destructive information. Neibarger and Hinshaw explain that it is important for attorneys to secure any relevant texts relating to pending litigation because failing to do so can come at a hefty cost. While specific written text messages can hold great value, time and date information could also be just as useful in situations such as an accident involving alleged texting while driving.

Just like saving important documents, taking steps to preserve text messages as soon as possible is very important. Screenshots or photocopies of texts will work in some cases, while others will need data pulled from the phone and stored electronically to prove authenticity. The manner in which the text should be saved depends on the significance of the matter and the scale of litigation.

Hinshaw suggests that using vendors specializing in e-discovery can provide a reliable conduit to authenticate texts. While costly, this is often the most reliable source for authentic data retrieval. Other possible options would be a firm’s in-house IT, computer software and phone apps.

A case decided last summer in the U.S. District Court for the District of Nevada (See Small v. University Medical Center of Southern Nevada, 2:13-CV-00298) saw the court heavily sanction the defense in a class-action lawsuit alleging the medical center deprived employees of appropriate wages and overtime compensation. The court said the medical center lost or deleted over 26,000 text messages sent by employees before discovery could take place, which is an extraordinary act of misconduct and spoliation of relevant information.

Using text messages for work purposes prompts more questions about litigation involving text message preservation specifically in “bring your own device” workplaces. Neibarger says, “It typically is a nightmare. You don’t have any real reliable way of maintaining those messages.” His advice is to “go ahead and preserve the information now, and direct all employees to no longer use text messages for business purposes.”

You can read “Texts present unique challenges in evidence preservation and admission” in its entirety on the Indiana Lawyer website.

To learn more about Gregory A. Neibarger and his practice, please visit his profile.

To learn more about James M. Hinshaw and his practice, please visit his profile.


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