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Dealing With Deleted, Unsent and Edited ESI
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.
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