While companies are still struggling to figure what e-discovery rules mean for e-mail retention, experts say there’s a new area to start worrying about:

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.

Tags: e-discovery, text messages