It doesn’t take a millennial to know that these days not all pertinent business-related communications are to be found on corporate e-mail servers. As we have increasingly seen in recent internal investigations, the most important written communications (especially between high-level executives), are now to be found in a place that most lawyers at the senior level have for years either ignored altogether or for some reason considered untouchable – cell phone text messages. The New York Times recently reported on the implications of this trend—which is hardly new— of executives at all levels taking sensitive communications off e-mail. See As Elites Switch to Texting, Watchdogs Fear Loss of Transparency.
The same potential loss of key communications from “the record” are present in internal corporate investigations where texts are left out of the investigation plan. If text messages and other forms of messaging are not fully considered, an internal investigation result may be at best incomplete or at worst incorrect. The worst mistake is when investigators assume that if communications are not found in corporate e-mail that they did not occur, and draw inferences based on that assumption. But text messages can be difficult to collect from individuals, and, due to a patchwork of inconsistent corporate policies regarding their preservation and use, may present privacy considerations on behalf of the individuals who are texting. Those difficulties begin to make it more understandable why most internal investigators would prefer to ignore their existence altogether and simply rely on easily attainable, and searchable, corporate e-mail.