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2026-10-28

Litigation holds for text messages and chat apps: what courts expect

Courts in 2026 sanctioned parties on different sides of litigation for messages lost to auto-delete, app reinstalls and self-selected screenshots.

Consider a hypothetical dispute between distribution partners: on Monday, counsel sends a litigation hold notice to six people directing them to keep “all documents and communications”. By Thursday, the operations director has forwarded screenshots of the group-chat messages he thinks matter. Nobody has asked which phone he uses for work, and the disappearing-message timer, set months earlier by someone at the other company, remains at one week.

A litigation hold for text messages must reach work-related accounts and personal devices, suspend auto-delete, and put counsel in charge of preservation decisions. Under Federal Rule of Civil Procedure 37(e), unreasonable preservation failures can support curative measures when irreplaceable loss causes prejudice; intent to deprive can support an adverse presumption or worse. At Turbo Law, we treat the notice as preservation’s starting point.

Does a litigation hold cover text messages and chat apps?

Yes. A legal hold reaches potentially relevant messages, including those on personal phones used for work. The device’s owner does not determine whether its contents matter to the case.

Texts and workplace chats are electronically stored information (ESI). The Sedona Conference’s Commentary on Discovery of Mobile Device Data, finalized in October 2025, explains that preserving mobile data requires the same reasonable, good-faith efforts required for other ESI. A mailbox-only instruction may leave the actual conversation untouched.

The common-law duty to preserve arises when litigation is reasonably anticipated. Its trigger date can precede both the complaint and counsel’s notice. In the employment ruling discussed below, the employee’s statement on termination day that the company would hear from his lawyer was enough.

Using ephemeral messaging is not itself misconduct. The Sedona Conference’s July 2021 Commentary on Ephemeral Messaging recognizes legitimate business reasons for it. Once preservation becomes necessary, counsel must examine what the settings will erase.

What does Rule 37(e) require when messages are lost?

Rule 37(e) requires more than proof that a message disappeared. The information must have warranted preservation in anticipation or conduct of litigation, been lost because reasonable preservation steps were not taken, and be unavailable through restoration or replacement in additional discovery.

Start with those conditions. Another participant’s preserved copy may matter before anyone reaches sanctions.

The rule then separates the available remedies:

Prejudice under Rule 37(e)(1). If the loss prejudices another party, the court may order curative measures “no greater than necessary to cure the prejudice”. That is a limit on the remedy.
Intent under Rule 37(e)(2). A finding of intent to deprive another party of the information’s use permits an unfavorable presumption, an adverse-inference jury instruction, dismissal or default. Negligence, even gross negligence, does not satisfy this requirement.

The 2015 Advisory Committee Note states: “This rule recognizes that 'reasonable steps' to preserve suffice; it does not call for perfection”. It also explains that anticipated litigation may require intervention in routine deletion. An established retention policy does not answer whether leaving it running was reasonable after the duty attached.

Subdivision (e) was last amended effective December 1, 2015. The 2026 rulings apply that framework; they did not create a new preservation duty.

Does a litigation hold cover text messages and chat apps?

Yes. A legal hold reaches potentially relevant messages, including those on personal phones used for work. The device’s owner does not determine whether its contents matter to the case.

What does Rule 37(e) require when messages are lost?

Start with those conditions. Another participant’s preserved copy may matter before anyone reaches sanctions.

The rule then separates the available remedies:

Prejudice under Rule 37(e)(1). If the loss prejudices another party, the court may order curative measures “no greater than necessary to cure the prejudice”. That is a limit on the remedy.
Intent under Rule 37(e)(2). A finding of intent to deprive another party of the information’s use permits an unfavorable presumption, an adverse-inference jury instruction, dismissal or default. Negligence, even gross negligence, does not satisfy this requirement.

Subdivision (e) was last amended effective December 1, 2015. The 2026 rulings apply that framework; they did not create a new preservation duty.

How did auto-delete lead to sanctions in 2026?

Auto-delete continued after preservation duties attached, sometimes despite explicit warnings. The resulting remedies depended on the applicable law and what the court found about the loss.

In the Northern District of California’s September 11, 2026 order, senior officials defending a government party used Signal on personal phones. Counsel initially had not searched those phones. Most messages disappeared within one to four weeks under settings participants had selected; the court specifically observed that “Signal messages do not auto-delete by default”.

An internal email had reminded staff to archive work messages and disable auto-delete. Another custodian reinstalled the app while under an order to search his phone, wiping its contents. Applying a preponderance standard, the court found unreasonable preservation failures and prejudice, plus intent to deprive as to at least one custodian. It barred certain “hindsight testimony”, imposed an unfavorable presumption and allowed recovery of fees incurred in uncovering and addressing the spoliation.

The group-chat setting deserves its own question.

In a merger dispute, the Delaware Court of Chancery’s May 26, 2026 opinion explained that any Signal chat participant could change the timer for everyone. A controlling stockholder and senior officers received holds but failed to check settings; some deletion periods were measured in hours or less. The court found recklessness at a minimum, presumed limited facts against two defendants, and required clear and convincing evidence to rebut them. This was Delaware law, not Rule 37(e).

The Southern District of New York’s October 5, 2026 employment ruling reached a different result on intent. The employer waited 76 days after the duty attached to circulate a hold. IT applied it only to the employee’s mailbox, despite warning that “Teams conversations are auto deleted”. Email was not the principal communication channel. Microsoft Teams messages disappeared after 30 days, and the laptop was wiped under routine policy.

The court found negligence and denied the requested mandatory adverse inference under (e)(2). Under (e)(1), it allowed evidence about the losses and resulting gaps, permitted the employee to request an instruction allowing the jury to consider that evidence alongside the rest, and allowed a fee application.

State of mind matters to the available remedy. As the Advisory Committee Note puts it, “The remedy should fit the wrong”.

Can custodians collect their own text messages?

Custodian participation may be appropriate, but counsel cannot simply accept whatever a custodian decides to save. Selection and deletion create different problems from a supervised collection.

In the California ruling, a custodian chose messages to screenshot or email, then deleted originals. Surrounding messages and timestamps were lost. The court rejected leaving relevance decisions solely to custodians without counsel’s involvement.

The problem also reached the party bringing suit. In the Southern District of Florida’s October 12, 2026 order, an individual plaintiff had wiped her cloud account and deleted phone messages, including WhatsApp messages, while giving counsel what she considered relevant; the court declined dismissal but imposed a rebuttable presumption that the destroyed evidence was relevant and unfavorable to her.

Sedona’s mobile-device commentary describes preservation options ranging from a notice alone to cloud backup, device sequestration, targeted copying or forensic collection. The appropriate choice depends on the circumstances. Someone unfamiliar with phone settings may acknowledge a notice and still replace the device or leave disappearing messages active.

Follow through on the notice. The New York court quoted the warning that “Counsel cannot just implement a litigation hold and then sit on his hands”. A screenshot arriving in counsel’s inbox does not establish what remains on the phone.

What should a litigation hold for chat apps include?

It should identify the actual sources and give instructions that people can carry out, with someone responsible for checking completion. We would start the first preservation discussions with these questions:

Locate the conversations. During the custodian interview, ask which phones and accounts the person uses for work. Name the apps. Ask about group chats involving people outside the organization.
Check the timers. Direct auto-delete suspension where needed and verify the relevant chat settings. The Signal rulings show why checking only a general app preference may miss a timer another participant changed.
Reach the platform and device. Confirm with IT that preservation includes relevant Teams conversations, rather than stopping at the mailbox. Address routine wiping of departing employees’ devices before the laptop is reset.
Choose a preservation method. Decide whether instructions suffice or whether backup, sequestration or collection is needed. For WhatsApp messages, that requires examining the relevant account and device with qualified assistance where appropriate; a custodian’s selected screenshots are no substitute for that decision.
Keep counsel involved. Explain that custodians should not delete originals after forwarding excerpts. Determine scope with counsel and retain enough context to understand the messages.
Verify and document. Record what was checked and what changed, including unresolved settings or access problems. Revisit compliance when a device is replaced or new custodians emerge.

Bring remaining preservation issues to the Federal Rule of Civil Procedure 26(f) conference. Rule 26(f)(3)(C) requires the discovery plan to address “any issues about disclosure, discovery, or preservation of electronically stored information”, at the same conference addressed in our article on privilege logs under the amended federal rules. Federal Rule of Civil Procedure 16(b)(3)(B)(iii) permits preservation provisions in the scheduling order.

Scope still matters. Both Sedona’s ephemeral-messaging guidance and the Advisory Committee Note recognize proportionality; counsel should tie the preservation method to the relevant information and the circumstances, documenting the choices made.

How does Turbo Law fit into preservation and review?

Our work starts with materials the firm’s own preservation and collection process has captured and placed in the matter file. Turbo Law works with existing document management systems, including iManage, NetDocuments and Clio.

Review reads those records alongside pleadings, correspondence, transcripts, expert reports and the team’s existing work. Exported chats and hold notices become part of one connected picture of the case, with facts linked to source pages and lines. That picture updates when new records arrive.

Counsel can ask which emails mention a chat absent from the collection, or where a produced thread stops. Those answers are leads to check. A quiet thread alone does not prove deletion, and an incomplete collection cannot establish everything that happened.

Our Assistant returns cited work for attorney review and says when the file does not support an answer. Its exportable assignment history records the request, materials read and output produced. When preservation becomes contested, Draft prepares discovery responses and motion papers from the matter, prior firm briefs and applicable rules for attorney review. This connection between the record and the next litigation decision is the subject of Document review should feed litigation planning.

Our security protections include no training on client data, logically isolated client environments, staff access requiring a support ticket and client approval, and logging of every access, query and export; the page also addresses SOC 2 Type II documentation. Counsel must separately check the matter’s restrictions, including any AI protective orders.

Turbo Law does not issue or track holds, collect or image phones, preserve messages, change app settings, recover deleted messages or decide relevance. Software cannot make a party compliant with Rule 37(e). Counsel remains responsible for reasonable preservation from the day the duty attaches.

FAQ

Does a litigation hold apply to an employee’s personal phone?

It can, when the phone contains potentially relevant work communications subject to preservation. Start by identifying the relevant accounts and conversations; personal ownership does not resolve the scope question.

Is leaving Signal’s disappearing-message setting on automatically spoliation?

The setting alone does not establish sanctionable loss. Counsel must assess whether relevant messages disappeared after a preservation duty attached and whether Rule 37(e)’s conditions are met. The California ruling also makes clear that auto-delete was a selected setting.

What if messages disappeared before anyone sent a hold?

The notice date does not control. Messages lost after litigation became reasonably anticipated may have required preservation even though counsel had not sent instructions. Rule 37(e) does not apply to information lost before the duty arose.

Does an adverse inference follow whenever relevant texts are missing?

Under Rule 37(e)(2), the court must find intent to deprive another party of the information’s use. Prejudicial loss caused by negligent preservation can support measures under (e)(1), but it does not satisfy that intent requirement.

Should counsel wait for a preservation dispute before checking settings?

Waiting can allow the relevant messages to disappear. Turbo Law does not provide legal advice; follow the rules, orders and case law governing the matter. Ask the custodian and IT to confirm the relevant retention settings while the messages still exist.