Law.com Subscribers SAVE 30%

Call 855-808-4530 or email [email protected] to receive your discount on a new subscription.

Cybersecurity Law & StrategyFeaturesCybersecurityE-DiscoveryTechnology Media and Telecom

Dealing With Deleted, Unsent and Edited ESI 

By Kim Beight Kelly
August 01, 2022

In an increasingly digital society, discovery of electronically stored information (ESI) has become part and parcel of written discovery. In many cases, document productions consist entirely of ESI because the parties communicate almost exclusively through text message and email. While these written communications have the appearance of reliability, technological advances have, over time, rendered many digital communications less static and more open to manipulation. Litigators need to take heed of these advances to properly advise clients and effectively preserve, retrieve and present evidence.

Of note, Apple recently announced that its latest operating system, iOS 16, will allow users to edit and unsend recently sent text messages. The new system is slated to roll out in Fall of 2022. Other platforms (e.g., Outlook, Facebook) have offered the ability to unsend messages for some time. However, the ubiquitous nature of text messages (particularly iMessages) and the additional ability to edit already-sent messages makes Apple's latest announcement particularly noteworthy for litigators dealing with ESI. As practitioners prepare to accommodate this development, they would be well-advised to adjust their e-discovery practices and forms to address deleted, unsent, and edited communications on all platforms.

Regarding preservation, practitioners should consider updating form preservation letters and instructing clients to ensure that iMessage and social media account settings are set to retain, backup, or archive messages as appropriate, bearing in mind that accounts may have default settings that are not in line with preservation obligations. As Apple releases more detail regarding how its new iMessage features will work, practitioners may need to provide more targeted instructions regarding preservation of edited and unsent iMessages.

This premium content is locked for Entertainment Law & Finance subscribers only

  • Stay current on the latest information, rulings, regulations, and trends
  • Includes practical, must-have information on copyrights, royalties, AI, and more
  • Tap into expert guidance from top entertainment lawyers and experts

For enterprise-wide or corporate acess, please contact Customer Service at [email protected] or 877-256-2473

Read These Next
How Secure Is the AI System Your Law Firm Is Using? Image

In a profession where confidentiality is paramount, failing to address AI security concerns could have disastrous consequences. It is vital that law firms and those in related industries ask the right questions about AI security to protect their clients and their reputation.

COVID-19 and Lease Negotiations: Early Termination Provisions Image

During the COVID-19 pandemic, some tenants were able to negotiate termination agreements with their landlords. But even though a landlord may agree to terminate a lease to regain control of a defaulting tenant's space without costly and lengthy litigation, typically a defaulting tenant that otherwise has no contractual right to terminate its lease will be in a much weaker bargaining position with respect to the conditions for termination.

Pleading Importation: ITC Decisions Highlight Need for Adequate Evidentiary Support Image

The International Trade Commission is empowered to block the importation into the United States of products that infringe U.S. intellectual property rights, In the past, the ITC generally instituted investigations without questioning the importation allegations in the complaint, however in several recent cases, the ITC declined to institute an investigation as to certain proposed respondents due to inadequate pleading of importation.

The Power of Your Inner Circle: Turning Friends and Social Contacts Into Business Allies Image

Practical strategies to explore doing business with friends and social contacts in a way that respects relationships and maximizes opportunities.

Authentic Communications Today Increase Success for Value-Driven Clients Image

As the relationship between in-house and outside counsel continues to evolve, lawyers must continue to foster a client-first mindset, offer business-focused solutions, and embrace technology that helps deliver work faster and more efficiently.