For years, a familiar script played out in discovery disputes. A party's relevant text messages were gone. Counsel offered an explanation involving phone upgrades, carrier retention limits, or factory resets. Courts were skeptical but often reluctant to treat consumer app defaults as the equivalent of deliberate document shredding. That reluctance is gone.
A converging body of judicial decisions, regulatory enforcement actions, and agency guidance issued between 2024 and 2026 has hardened a new premise: when a party knows — or reasonably should know — that litigation is coming and allows ephemeral messaging features to keep running, the resulting data loss is a choice. Courts are now sanctioning that choice accordingly, and regulators are fining it at scale.
The Judicial Record Has Caught Up to the Technology
Two decisions illustrate how dramatically the judicial posture has shifted.
In Oakley v. MSG Networks (S.D.N.Y. July 2025), Judge Sullivan imposed spoliation sanctions after AT&T call-detail records showed the plaintiff had sent 1,113 text messages in the three weeks immediately following the incident at issue — a period during which preservation obligations had plainly attached. None of those messages were preserved. The plaintiff had also cycled through seven phone upgrades across the litigation. The metadata did not lie, and the volume made innocent explanation implausible. The court's willingness to use carrier-level metadata as the baseline against which preservation failures are measured signals a new evidentiary toolkit for spoliation motions.
The Ninth Circuit went further. As analyzed in Paul, Weiss's April 2, 2026 column in the New York Law Journal, the court affirmed dismissal with prejudice in an employment case where the plaintiff and key witnesses deleted relevant text messages and, critically, defied multiple court orders to preserve and produce them. Dismissal with prejudice — the litigation equivalent of capital punishment — confirms that text-message spoliation is no longer treated as a lesser infraction than the destruction of email or formal documents.
Regulators Have Already Priced In the Risk
The Securities and Exchange Commission has now collected more than $2.8 billion in fines tied to off-channel communication failures, a figure that spans dozens of financial institutions whose employees routed business conversations through WhatsApp, Signal, and personal email rather than through supervised channels. The enforcement posture has moved well beyond broker-dealers: it now reaches investment advisers, private equity firms, and their associated personnel.
The DOJ and FTC reinforced the cross-agency consensus in their January 2024 joint guidance, which expressly named Slack, Signal, and collaborative chat platforms as covered by records-retention and antitrust-investigation obligations. That guidance acquired immediate forensic significance in two pending matters. In the DOJ's Google Search monopolization case, prosecutors presented evidence that Google had set Google Chat history to "off" as a default configuration and had trained employees on message deletion practices — framing what might once have been described as a privacy feature as a mechanism for avoiding scrutiny. In FTC v. Amazon, senior executives reportedly continued using Signal's disappearing-message feature for competition-related discussions even after retention obligations were known to exist.
The pattern is consistent: regulators and prosecutors are no longer accepting platform defaults as exculpatory. The question they ask is whether the organization took affirmative steps to preserve. If the answer is no, the inference runs against the organization.
The 70% Problem and the BYOD Gap
The evidentiary and regulatory pressure would be more manageable if employees were actually using corporate-provisioned, IT-managed devices for all business communications. They are not. A 2025 Global Relay survey found that more than 70% of financial services firms report employees using personal or ephemeral applications for business purposes despite explicit written prohibitions.
This statistic exposes the structural vulnerability underlying most current litigation-hold frameworks. A hold that covers the corporate Microsoft Teams environment but says nothing about the Signal account on a senior employee's personal iPhone is not a hold — it is a gap. BYOD policies that prohibit personal-device business communications without providing a technically enforceable mechanism to capture or suspend auto-deletion are aspirational documents, not preservation controls. When that gap produces missing messages, courts are increasingly unwilling to accept the policy document as a shield.
What Every Litigation Hold Issued Today Must Do Differently
The era of blaming the phone is over. The practical obligations that flow from the current judicial and regulatory environment are specific.
Every litigation hold issued today must name ephemeral platforms explicitly — Signal, WhatsApp, Google Chat, iMessage, and any other app in use — rather than relying on a generic instruction to "preserve relevant communications." It must direct recipients to disable auto-delete and disappearing-message features at both the device and application level, and it must document that instruction with a date-stamped confirmation. Where BYOD devices are in scope, the hold must address whether IT has any technical means of capturing those communications, and if it does not, counsel must decide whether to seek the device directly.
Before the next preservation duty triggers — and in most organizations, that moment is closer than it appears — in-house legal teams should conduct an architecture audit: Are Microsoft Teams, Slack, WhatsApp Business, and Signal accounts within the current capture and export infrastructure? Are retention policies synchronized with litigation-hold suspension mechanisms? Has IT actually tested whether a legal hold can reach a personal device enrolled under a BYOD policy?
Answering those questions proactively, and documenting the answers, is the difference between a defensible preservation record and the next sanctions motion.
How Law & Forensics helps. Law & Forensics provides end-to-end ephemeral-messaging forensics and litigation-hold advisory services, including device-level extraction of Signal, WhatsApp, and Google Chat data, preservation architecture audits, BYOD policy review, and expert testimony on spoliation and collection methodology. Our teams work directly with in-house counsel, outside litigation counsel, and compliance officers to close the gap between written hold instructions and technical preservation reality — before a motion is filed.