Preserving Mobile and Chat Communications: Minimizing the Risk of Data Loss

Text messaging, chat platforms, and ephemeral messaging apps have long been central modes of communication for many professionals, yet they are sometimes overlooked when litigation looms. Because these conversations can be more revealing than emails or traditional documents, ensuring they remain intact when there is a preservation obligation is important. Text and chat messages frequently capture real-time discussions that may not appear in formal emails, and given their potential evidentiary value, parties may wish to consider these communications on par with email in their preservation plans. One effective safeguard is a well-planned collection protocol, which can significantly reduce the risk of losing relevant information.

Practical Preservation Strategies

While each case is different, parties may consider the following measures to help lessen the likelihood of deletions or disputes over missing data:

• Implement a Legal Hold. As soon as litigation is reasonably anticipated or initiated, a legal hold should be issued to any potential custodians. Consider providing step-by-step instructions for preserving text and chat data, and designate a point of contact for anyone needing assistance. It may also be prudent to revisit older legal holds to ensure they account for “modern” communication methods and to highlight any updates for the recipients, so custodians understand their evolving obligations. In addition, legal holds should include reasonable systems-based preservation efforts, such as turning off the auto-delete functions of messaging apps where feasible.
• Think About Proactive Collection. Some custodians may not realize that actually collecting data — copying and preserving text messages or chat data from their devices — can be an effective way to minimize the risk of losing especially important communications. Engaging IT staff or outside vendors may be prudent to ensure this process is thorough and helps safeguard particularly important evidence.
• Conduct Periodic Check-Ins. Sending out regular legal hold reminders can reinforce the importance of maintaining all relevant messages and help custodians stay aware of their obligations.
• Keep Thorough Records. Documenting each preservation measure is helpful, as it can provide a strong defense if data is later questioned.

A Cautionary Example

The importance of collecting text messages emerged prominently in a securities suit involving biotech company Vaxart (In re Vaxart Inc. Securities Litigation, 3:20-cv-05949, District Court for the Northern District of California). Key text messages were deleted after a litigation hold had been imposed, prompting the court to consider sanctions. Although the judge has not yet ruled on whether the deletions were intentional, he criticized counsel for failing to secure the messages sooner, calling it “mind-boggling” that they had not been collected from the start.

Looking Ahead

Although no court has stated that specific preservation steps are universally mandatory, courts can — and do — scrutinize whether parties took reasonable measures to protect relevant data. For organizations and their counsel, treating mobile and chat messages as key evidence early in a case can help guard against accusations of spoliation and protect against reputational damage.

© Arnold & Porter Kaye Scholer LLP 2025 All Rights Reserved. This Blog post is intended to be a general summary of the law and does not constitute legal advice. You should consult with counsel to determine applicable legal requirements in a specific fact situation.