Can a company be sanctioned for failing to preserve employee text messages during litigation?

Short Answer

Yes. When an organization reasonably anticipates or is involved in litigation, it has a duty to preserve relevant evidence — and that duty extends to employee text messages. If those messages are lost because they were not preserved, a court can impose sanctions for what is commonly called spoliation.

Why Text Messages Count

The form of a communication does not determine whether it must be preserved; its potential relevance does. Texts, chat threads, and other mobile messages are electronically stored information (ESI) and are treated like email or documents for discovery purposes. Many organizations overlook them because the data lives on personal or employer-issued phones, in carrier systems, or in ephemeral apps that auto-delete — but that does not excuse the duty to preserve.

What Triggers the Duty

The obligation to preserve generally begins when litigation is reasonably foreseeable, not just after a lawsuit is filed. At that point, an organization should:

• Issue a litigation hold suspending routine deletion for relevant custodians.
• Identify where relevant messages live, including mobile devices and messaging apps.
• Disable auto-delete or ephemeral settings for affected accounts.
• Document the steps taken to preserve.

When Sanctions Apply

Courts look at whether ESI was lost, whether reasonable steps were taken to preserve it, and whether it can be restored or replaced. Remedies escalate with culpability and prejudice:

• Curative measures — additional discovery or cost-shifting when loss causes prejudice.
• Adverse-inference instructions — telling a jury it may assume the lost evidence was unfavorable, typically reserved for cases involving intent to deprive.
• Severe sanctions — striking claims or defenses, or default judgment, in the most serious cases.

Penalties tend to turn on intent and resulting harm rather than the mere fact of deletion.

Practical Takeaway

Treat mobile and messaging data as a first-class records category. Build it into retention schedules, hold procedures, and device policies before a dispute arises — preservation is far easier than defending its absence. For more on managing chat and mobile data, see the email and messaging topic hub.

The Sedona Conference offers widely cited guidance on ESI preservation and proportionality that records and IG professionals use to benchmark defensible practices.