Should I preserve text messages and emails as evidence if I am sued?

Nobody wants to be accused of spoliation of evidence (aka, destruction of evidence) such as text messages and emails. That’s likely why you are reading a blog about whether you must keep evidence.  The good news is that California no longer recognizes a freestanding lawsuit for destroying evidence.  Instead, the Court may impose severe sanctions and other punishments if it finds that a party has destroyed evidence.  Click here for more on that topic.

The short answer is you should never destroy any evidence.  This is even more true if you have been sued. There’s no doubt – text messages and emails are evidence. Often, electronic communications are the best evidence. Don’t delete them.  Of course, I’m talking about text messages and emails that are related to the claims in the lawsuit. You can still delete garbage or spam text messages and emails.

In fact, if you even have an inkling that a lawsuit is coming your way, diligently preserve incoming and outgoing text messages and emails.  Do not start a deletion campaign. The same is true if you may have legal claims. For example, if you think you are about to be fired for an illegal reason, do not delete relevant text messages and emails.  Your text messages and emails could be extremely valuable evidence.

Saving electronic evidence is critical.  Often, a single email or text message can make a case, or support a great defense. Without this critical electronic evidence, you may be left with only your fallible, fading memory and maybe you can’t prove your case.  It’s so much better to have an electronic smoking gun to waive around during a trial.

Backup, Preserve and Safeguard Text Messages and Emails

In addition to NOT deleting relevant text messages and emails, what should you do? You should preserve them. Backup your phone! Backup your phone on a laptop computer. Back up your phone on a desktop computer if you have one. Locate and copy all relevant emails into a folder on Outlook or other email platform.  You can search for emails using key words and by author, sender, etc.  Also, make sure the folders are backed up on a cloud or your hard drive.

Do don’t this great source of evidence go to waste. We lawyers love electronic communications. People compose text messages and emails as if they are not permanent records. They are. Be careful. When you write an email or a text message, ask yourself this question: “if a judge or jury reads this, will it hurt me?”  This mindset will keep you from drafting an electronic smoking gun you later regret.

If you have questions or concerns about when to be concerned with electronic evidence, whether and when to save emails, text messages or other documents, let us know.  We have many other civil litigation articles you might like, including hiring independent counsel.

Matthew Clarke –