Tiger Woods’ use of text messaging underscores the repercussions such communications can have, especially when the messages are released from the recipient to a third party. Apparently, Tiger sent text messages to one of the women he is alleged to have had an affair with and she has offered the texts as proof. Tiger isn’t the first to down by way of the text message, as former Detroit Mayor Kwame Brown can attest to, and odds are he won’t be the last.
Text messaging may appear to be "safe" for communications of this sort but it is not. In addition to the Tiger example, texting can be front and center in lawsuits. Consider a scenario where two employees decide to leave their employer and take valuable customer information with them. They coordinate their departure through text messages because they believe this is safe communication as opposed to email. Is it? Can the employer obtain the texts through discovery?
There are three potential sources to obtain text messages: the phone, the phone company, or the recipient. Once texts are deleted from the phone, it "sticks around" as described in Slate:
until enough new information is added to fill that memory, your old text message will remain on your device. If you used a SIM card to store your text messages before you erased them, then there might be space for the remains of 30 or so deleted messages; if the messages are downloaded directly to your phone, several hundred deleted messages could stick around on your device. Eventually, of course, the deleted messages will disappear as memory is filled with new messages, photos, or videos.
Phone providers have different policies on how long they maintain text files: AT&T Wireless keeps messages for 48 hours while Sprint keeps them on its server for approximately two weeks. So it is unlikely that text messages can be obtained from the phone company unless you know about the messages near the time they were sent.
The third source, the recipient could keep the text forever. They could print out the text, save it, or send it to other people. The point is once you release the text message, just like an email, you have effectively published it to the world.
The party to a lawsuit may have a difficult time obtaining text messages through discovery but should include requests for these types of communications. Also, in appropriate instances, discovery should be directed to potential third-party recipients of such messages.