Text messages.

In a by now infamous 2008 case, the mayor of Detroit was convicted of lying to a grand jury about both unwarranted dismissals and a sexual affair with an underling.

The reason he got caught: His text messages were obtained (by the thousands), and they told all. By an unusual circumstance, his messages from six years before using a city-supplied device had been retained by the city’s service provider, and they had been subpoenaed by an alert prosecutor.

This has been the most spectacular example to date of the legal importance of text messages (Tiger Woods’s texting, however indiscreet, did not break any laws). And the law is now clear: Any text message is open to subpoena, and those made using a company or organization’s cell phone or messaging device get no special protection. What still hasn’t been determined is companies’ responsibilities for retaining those records, as they now retain e-mail and written communications. But the rules are on the way, according to e-discovery expert Benjamin Wright.

One solution might be to ban Internet messaging entirely for employees. But that seems unlikely –- a rapidly growing section of the workforce now uses messaging as freely as they do phone calls and e-mails. As a result, texting is starting to become crucial to operations. It’s hard to go backwards in a quickly evolving technosphere. And banning messaging will soon seem to some workers (and customers) as retrograde as forcing workers to write with quill pens on animal hides. In areas like sales and support, for example, messaging use is growing by leaps and bounds.

So far, there are no clear rules on messaging retention. But as the cases multiply and the court rulings proliferate, it’s hard to believe that the same standards for other digital communications won’t prevail. That’s an issue that management has to start thinking about and IT departments have to start planning for.

More immediately, companies have to take stock of how employees are currently using messaging, and to work on developing some guidelines for their use.

What is metadata? It’s the digital information that gets attached to any email or text document that traces who created the document and when, what (if anything) it was based on, who modified it and when, and how it was routed inside and outside the company.

Think, for example, of a lawsuit that turns on the issue of whether a certain document was reviewed by a senior manager. Consider a fired employee who can demand not only confidential personnel files, but who wrote them and when.

The issue came up in a ruling by the Arizona Supreme Court, which reversed a power court decision that ruled that metadata –- in this case included in public records — not being an intrinsic part of the document, could not be demanded by the plaintiffs along with the documents in question. The higher court stated that the hidden metadata was to be made as available as the regular data.

As one legal expert stated:

“Without knowing when something happened, or who was involved, electronic evidence is often useless –- thus, metadata is critical. Because of metadata’s critical nature, it is generally deemed to be part and parcel of the document it describes – if the document is relevant and must be divulged, then so must the metadata.”

What can and should companies do? The temptation might be to erase metadata in advance (there are tools in Microsoft Office that can). But at least one other case is pending where a company may be in hot water for doing this.

As emails including hastily written text messages become ever more interesting to plaintiffs, expect this whole area of metadata to become an ever-bigger issue. For more on metadata, you might want to check out this legally-oriented report.

While navigating the electronic discovery rules put into effect in 2006 can still be murky, one thing is clear:

Failing to adequately comply with discovery requests is a costly mistake. Take this recent lawsuit:

In 2007, Dell Computer was sued over an alleged misappropriation of funds related to a surveillance camera system developed for the city of New Orleans. The suit claimed Dell was part of a conspiracy to fraudulently sell the system.

A key component of the case was whether Michael Dell personally knew about the supposedly shady deal. To figure that out, plaintiffs’ attorneys filed a discovery request asking Dell to turn over all relevant e-mails.

What Dell provided didn’t please the plaintiffs or the court. Despite turning over more than 160,000 pages of documents, Dell was accused of dragging its feet and performing a “piecemeal” production of information, the Associated Press reports.

The major charge: Dell failed to use specific keyword searches to find relevant e-mails. For example, the opposition’s lawyers pointed out that Dell didn’t include a search for the word “camera” in Michael Dell’s e-mail.

The judge agreed and found the company in contempt of court, saying it had made a “mockery” of the system and calling its actions “unconscionable.” In addition to the tongue-lashing, the court fined Dell $25,000 in sanctions. The judge ordered the company to conduct a search using specific keywords.

The lesson: Lawsuits can come from any direction and for a variety of causes, and an increasing number will require e-discovery. Companies need the capability to quickly find relevant documents and turn them over in a timely manner. In addition to protecting data according to a retention policy, the documents should be searchable using flexible search terms.

Cite: Active Solutions, LLC and Southern Electronics Supply, Inc. v. Dell, Inc.

Electronic discovery rules have thrown a wrench into businesses’ document management practices — those that aren’t up-to-date could face big legal trouble.

Passed in December of 2006, the e-discovery rules hold IT responsible for preserving electronic info that could be used as evidence in a court case. Failing to comply can be costly.

One recent court case started as an employment dispute. A worker claimed she was unlawfully fired for taking protected leave under the Family & Medical Leave Act. The company claimed she was let go in a restructuring that would’ve happened even if she didn’t take leave. But the judge didn’t buy it.

One key piece of evidence against the employer: a deleted e-mail explaining why the woman was fired. Here’s what happened, according to the court opinion:

After the woman was fired, her manager sent an e-mail explaining the termination to the rest of the department. When she said she was suing, the manager was told to save all relevant documents — including e-mail — in preparation for litigation. But she deleted the e-mail anyway.

The manager said it was erased by mistake, but the judge didn’t believe her. He ordered the company to be sanctioned. That means when the case goes to trial, the jury will be told the company deleted the e-mail on purpose, presumably to hide incriminating evidence.

Have a policy, enforce holds

The first step to avoiding e-discovery fines and sanctions is having a document retention policy and sticking to it. In most cases, companies can stay safe when info is deleted based on an organizations normal procedures for dumping data. For example, if e-mails are deleted from the server after a month, a company won’t get in trouble for missing a message that’s more than a month old.

However, policies must also include a provision for litigation holds — that is, hanging on to relevant documents when a lawsuit begins. Once a company knows it may be heading to court, the rules demand it protect any data that could play a role in the case.

In the case above, the company didn’t adequately respond to a litigation hold. Instead of setting up a process to archive every e-mail that mentioned the employee, or every message sent by someone involved in planning the reorganization, the company simply trusted managers not to delete relevant e-mails.

So the manager deleted the e-mail from her computer, and IT didn’t back it up — leading to the sanction against the company.

Cite: Connor v. Sun Trust Bank

A discrimination suit was filed against a county government office in New York. The plaintiffs claimed key evidence was to be found in the county’s e-mail servers. But the county said the e-mails in question were no longer stored on the network. They could could get them from the archive of back-up tapes, but they’d have to pay employees or outside consultants an arm and a leg to search through about 420 reels of tape.

Normally courts let companies slide – or at least ask the parties to split the bill – when the cost of discovery is unreasonably high. However, in this case, the county was moving the e-mails to the back-up tapes even after it knew it was getting dragged into court — which is a violation of e-discovery rules. So the county had to perform the e-mail search and pay the full price, and it got fined for breaking the rules on top of that.

What you can learn

Of course, companies aren’t expected to save every piece of data indefinitely just in case a lawsuit comes up. But as the judge in this case said, when a company is in court, they “can’t just throw [their] hands up and say we don’t store [e-mails] in an accessible format and then expect everyone to walk away.”

The key is having a data retention policy and knowing when to go beyond it. As long as companies have a consistent schedule for how long they hang on to e-mails before wiping them from the server, courts have found those policies to be compliant.

The exception is in the case of a so-called “litigation hold.” In other words, when a company can reasonably expect that it’s going to wind up in court, it has to make sure every piece of data that might be relevant to the case is saved in a readily accessible format. That means as soon as HR, or anyone else, gets word about possible legal action, IT needs to know so they work on protecting the necessary info.

Otherwise, the company get hit with a fine, and may even end up losing the case by default.

Cite: Toussie v. County of Suffolk