Texting in the course and scope of business communications is almost ubiquitous. If your company issued a phone to an employee, presumably your company has the ability to control and preserve text messages sent on it. However, if your employees conduct company business on personal phones, you may not have control over their phones, but you may have a duty to preserve texts and emails relevant to pending litigation. A recent employment discrimination decision illustrates the peril of allowing employees to use personal phones without limits in the course and scope of their jobs.
In Miramontes v. Peraton, Inc.[1], the plaintiff was laid off after 27 years of employment with Peraton Inc. and its predecessors (“ the Company”). Miramontes sued the Company for breach of contract; negligent misrepresentation; declaratory judgment; fraud; violations of the Deceptive Trade Practices Act; and race, color, and age discrimination. Miramontes’ lawyer sent the Company a litigation hold notice, informing it of its duty to preserve all relevant documents, including text messages. However, employees at the company, including Miramontes’ supervisor who made the decision to terminate Miramontes, used their personal phones to text one another. Despite the litigation hold notice, the Company did not make any effort to require Miramontes’ supervisor to preserve text messages, and he deleted several that related to the litigation as part of his usual practice of deleting all texts after 48 hours.
When Miramontes’ lawyer learned of the deleted text messages, he asked the Court to sanction the Company by granting a verdict of liability on all claims. The Court did not go that far, but it did find that the Company violated its duty to preserve documents and evidence, and on that basis, denied the Company’s Motion For Summary Judgment, sending the case to trial. The key factor in the decision was whether the Company had control over the communications on the employee’s personal cell phones. The Court identified these factors in its analysis:
- whether the employer issued the devices,
- how frequently the devices were used for business purposes,
- whether the employer had a legal right to obtain communications from the devices,
- whether company policies address access to communications on personal devices.
The Court also noted that some decisions find that a company has “control” over business information on its employees’ personal cell phones when the phones are routinely used for business purposes. Although this is an evolving area of the law, prudent employers need to evaluate the frequency with which employees use personal devices to communicate about work related matters, and take steps to ensure that policies and processes for responding to litigation hold notices are updated and address preservation of information on personal phones. The employment attorneys at Poyner Spruill are well versed in these issues and able to review or draft policies and processes to preserve all relevant documents and communications in the event of litigation.
[1] Miramontes v. Peraton, Inc., No. 3:21-CV-3019-B, 2023 WL 3855603 (N.D. Tex. June 6, 2023).
