There are two obvious partiesto every text message conversation: you, and therecipient. Under certain circumstances, typically not anticipated at the time of the conversation, there may be other recipients, such as the court or an adverse party, when the texts are sought as evidence in litigation.

There is also a certain paradox to mobile messaging: it is the most discreet and most recorded form of communication. Many people assume that text messages are private, but recent momentous events have shown otherwise. From investigating the Capitol siege in the Jan. 6th hearings to high-profile court cases such as Depp v. Heard, Commonwealth v. Carter, and United States of America v. Anthony Weiner, mobile messaging is playing a pivotal role in the courtroom.

The constantly evolving nature of mobile messaging has become foundational in the realm of electronic discovery (e-discovery): the process of identifying, collecting, and producing electronically stored information (ESI) for legal purposes by electronic means. Analogous to social media posts and other forms of digital communication, mobile messages can be used as evidence in court and can be instrumental in the outcome of criminal and civil cases. However, while laws concerning e-discovery are front and center, their application to mobile communications, which merges oral and data communications, presents a new frontier that raises a litany of unique issues regarding privacy, data retention, and production. This article examines those issues.

Mobile messaging, or text messaging, refers to the ability to send and receive text-based messages via mobile phones using Short Message Services (SMS), a protocol used for sending short messages over wireless networks. The convenience and simplicity of SMS, combined with the evolution of pricing models have contributed to significant growth of the SMS market in Asia and North America over the past few years. According to a 2021 Statista report, there were 2.2 trillion text messages exchanged in 2020, an increase of 102 billion messages since 2019. (Statista. 2021. Total number of SMS and MMS messages sent in the United States from 2005 to 2020).

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