Retain Text Messages as Business Records Lessons from Deflategate
Text messages can be legally significant communications that should be retained like emails or paper letters. Like an email, a text message can form a binding contract. A text message from a corporate executive could for example say to a vendor, “Yes, we agree to pay $50,000 for 100 widgets.” That message could be used in court to enforce a contract to pay $50K.
Or an executive could text to an employee, “You are fired.” That message likely needs to be retained as an employment record. It could be relevant to any number of tax or legal inquiries related to the employee’s employment.Deflategate demonstrates how important text messages have become.
“Deflategate” is a controversy in the National Football League. Based on an investigation, the League determined that the New England Patriots team reduced the air pressure in footballs in violation of rules. The NFL punished Patriots Quarterback Tom Brady by suspending him for four games. (The team is appealing the NFL’s decision.)
Cell phone text messages played a crucial role in the Deflategate investigation and the decision to punish Brady. The investigation focused on certain Patriots team employees, who were texting on cell phones owned by the team. In cooperation with the investigation their phones were given to a forensic expert, who recovered relevant text messages. The expert even recovered messages that had been “deleted” from the phones! https://plus.google.com/+BenjaminWright1/posts/JsuLjjcwrYk Text messages are written, legal evidence.
In one message an employee refers to himself as the “deflater.” In another message the employee sent a “deflate” message at a suspicious time. Other employee messages referred to the air pressure in balls. This written evidence, when combined with other evidence, contributed to the investigation’s conclusion that the team was probably violating league rules and that Brady was implicated.
Logically the League requested access to the text messages on Mr. Brady’s cell phone, which was owned by him rather than by the team. But Brady refused to provide access to his messages, even though the League had promised to let Brady’s legal team screen out irrelevant messages, including personal stuff.
When the League announced punishment for Brady, it specifically cited Brady’s refusal to turn over text messages. The League implied that if Brady had exculpatory text evidence, he could have brought it forward. But his decision to withhold texts hints – when compared with other evidence – that his texts would incriminate him.
That’s Deflategate. Now let’s consider what Deflategate teaches us in general about text messages in the workplace. When an authorized employee makes an important written statement, the employer needs a record.
In today’s working world people use text messages all the time. As in Deflategate, the messages can be evidence that could resolve a dispute or an audit.
Many employers have means for archiving official employee email. But email is not the same as text messages. Texts often use systems, such as the personal phones owned by employees, that are outside the employer’s direct control. It can be hard for employers to archive texts (even when they are sent through employer-owned phones.)An employer faces policy dilemmas. Here are options for the employer:First Option:
The employer could ban text messages for important communications. It could require that all significant messages be sent through official email. In some corporate cultures, this option might work. But in other cultures it might not work. Executives and professionals might ignore the ban and use text messages anyway because text is so easy and popular.Second Option:
The employer might enter this agreement with each executive, manager or professional employee: If you send a text message – by any means – within the scope of employment, then the employer owns the message and all records of it. The agreement might go on to say that the employee will upon request turn over control to devices (like phones or smart watches) and services so that the employer can get the records that it owns.
But this second option could make the employee uncomfortable. To account for all of the messages could be a hassle for the employee. The employee might be reluctant to turn over his or her personal phone so that the employer could search for texts that belong to the employer.Here is a solution for the employee.
The employee’s discomfort under the Second Option might be addressed many different ways. Here is one way: The employee could adopt technology and a practice for sending copies of all business-related text messages to the employee’s official email account. There the texts could be archived like email and searched like email.
Thus, the employee could say to the employer: “I systematically and faithfully copy all business texts to my official email account. You can look in my email account, which you own and control. You’ll see that all business texts are there . . . every one of them. You can even conduct an audit by consulting people that I might exchange texts with (such as other employees), and you’ll find that all of my business texts have been copied to my official email account. Therefore, you can feel satisfied that you don’t need access to my phone.”
In many cases, such a statement from the employee will be good enough for the employer. For the employer, to confine its search for records to its official email archive is much easier than searching through the employee’s personal phone or through an app that runs on that phone. What technology copies texts to email?
What technology enables an employee to copy his or her business texts to an official email account? The answer varies. Some text message systems themselves allow the user to send each text (copy the text) to an email address. But many systems do not allow that.
Fortunately, there are many mobile apps that will forward text or text threads to email.
The link below shows one Android app that allows the user to forward text to email. There are other apps.
What do you the reader think?#deflategate #textmessage #smartwatch #WellsReport