Lawyers and Texting: Part IV

Ethics Corner Article

Part IV: Text Messages and Spoliation

Dear Ethics Committee,

I understand that many of my clients use texting as a primary source of communication in their day-to-day lives. What concerns, if any, should I have relative to the preservation of these text communications under the NH Rules of Professional Conduct when civil litigation is pending or reasonably foreseeable?

Answer

Texting is popular and widespread among individuals and businesses alike.  Although these communications are often informal and easily discarded, when civil litigation is pending or foreseeable, to avoid sanction and other issues relative to the destruction of evidence, it is important for attorneys to instruct their client to preserve these communications. Please note that this opinion does not address the application of the NH Rules of Professional Conduct as applied in the criminal law context, as that analysis must be considered in conjunction with a defendant’s Fifth Amendment rights.

Rule 3.4 of the Rules of Professional Conduct addresses an attorney’s obligation to preserve evidence.  Rule 3.4(a) states a lawyer shall not “unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act.”  The ABA comment to the rule provides further guidance in understanding its scope.  It states that:

The procedure of the adversary system contemplates that the evidence in a case is to be marshaled competitively by the contending parties.  Fair competition in the adversary system is secured by prohibitions against destruction or concealment of evidence, improperly influencing witnesses, obstructive tactics in discovery procedure, and the like.

An attorney’s obligations under Professional Conduct Rules 3.4 are straightforward with respect to the unlawful conduct referenced in the rule.  However, in our world of ever-advancing technology, it is important for attorneys to recognize that all electronically stored information (“ESI”), which includes text messages, is subject to Rule 3.4.  In addition, attorneys should likewise be mindful of Rule 1.1 relative to competence.  Under this Rule, attorneys should note that when evidence is not preserved, they may also be subject to discipline under Rule 1.1.

In the civil context, the common law rule in New Hampshire is that “all parties are under an obligation to preserve documents and records from the time that the party is reasonably on notice that a document or record may become evidence or be subject to discovery in a lawsuit.”  N.H. Ball Bearings, Inc. v. Jackson, 158 N.H. 421, 428 (2009).  The duty to preserve extends to “any documents or tangible things . . . likely to have discoverable information that the disclosing party may use to support its claims or defenses.”  Zubulake v. UBS Warburg, LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003) (citations omitted).

Where destruction of evidence in a civil case occurs, spoliation may come into play.  Spoliation is “the destruction or significant alteration of evidence, or the failure to preserve property for another’s use as evidence in pending or reasonably foreseeable litigation.”  West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999); see e.g. N.H. Ball Bearings, Inc., 158 N.H. at 433.  If spoliation is found to have occurred, the court may instruct that an adverse inference be issued against your client’s interests.  Id.

In a recent civil case involving spoliation of text communications, a Federal District Court in New York granted a party’s motion for an adverse inference due to the opposing party’s failure to preserve text messages.  Ronnie Van Zant, Inc. v. Pyle, 270 F.Supp.3d 656 (SDNY 2017).  In Ronnie Van Zant, Inc., the opposing party primarily communicated by sending text messages about the issue subject to litigation.  The party failed to preserve those communications upon purchasing a new phone after litigation ensued, and the court ruled that this “evince[d] the kind of deliberate behavior that sanctions are intended to prevent and weigh in favor of an adverse inference.”  Id. at 670.

In addition, attorneys should be mindful that under New Hampshire’s criminal code, a person “commits a class B felony if, believing that an official proceeding, as defined in RSA 641:1, II, or investigation is pending or about to be instituted [the] [person] . . . [a]lters, destroys, conceals or removes any thing with a purpose to impair its verity or availability in such proceeding or investigation. . . .”  RSA 641:6.  Both clients and attorneys engaging in this conduct could be subject to prosecution, and, attorneys could be further subjected to sanctions under Rule 3.4.

In an effort to avoid sanctions under Rules 3.4 or 1.1, civil attorneys should notify their clients in writing by sending a preservation letter upon engagement in any matter where litigation is pending or reasonably foreseeable, or where investigation is pending or about to be instituted.  The letter should state the client’s obligation to preserve all records, documents, other information, and all ESI, which includes text messages. Clients should also be cautioned not to alter, delete, destroy, conceal, or otherwise remove any records and documents, including ESI, which the client may have in their possession regarding such matters.

By the NHBA Ethics Committee

This Ethics Corner Article was submitted for publication to the NHBA Board of Governors at its May 6, 2019 Meeting. 

The Ethics Committee provides general guidance on the New Hampshire Rules of Professional Conduct and publishes brief commentaries in the New Hampshire Bar News. New Hampshire lawyers may contact the Committee for confidential and informal guidance on their own prospective conduct or to suggest topics for Ethics Corner commentaries by emailing the Ethics Committee Staff Liaison.