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Let’s talk about texts: How to deal with evidentiary challenges relating to electronic messages in workplace investigations

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I’m not a particularly prolific sender of text messages (perhaps a generational thing). I’ve learned through doing investigative work that it is not unusual for work colleagues to exchange many (thousands!) of text messages over a relatively short period. I admit that the volume of messages still sometimes surprises me, and I’ve noticed that evidence in the form of electronic messages (texts or otherwise) carries its own special challenges when doing workplace investigations. In this blog, I’ve summarized six challenges and how to address them.

Incomplete text exchanges

Parties often provide only partial exchanges of text messages (or other electronic messages). For example, a complainant may provide only screenshots of the texts from the respondent with which they take issue, but not the entirety of their exchanges. This may be intentional (the complainant may not want the investigator to see texts that they sent to the respondent), or it may not be. Investigators should not settle for partial documentation, as it gives an incomplete picture of what happened between the parties. To be thorough, the investigator should ask for a more complete exchange of messages. The circumstances of the case should be considered when deciding what to ask for. For example, if the complainant takes issue with text messages from a co-worker that were sent during the span of three months, the investigator may consider confining the request to that period.

It is prudent to ask both parties for the text exchanges. This is to ensure that neither party has omitted or deleted text messages.

Texts no longer available

Parties may indicate that they no longer have some or all of the texts that are material to the investigation. They may have deleted them or have lost the exchanges when they changed mobile devices. In these circumstances, the investigator should ask questions about why the texts are not available and when they became unavailable (this can factor into a credibility assessment).

If the deletion of the texts is more recent, one option is to try to use a digital forensics specialist to assist with the recovery of the texts. This is, of course, contingent on the party agreeing to give up their mobile device for this purpose, which they may not be willing to do. Many employees use a hybrid personal/work device, and do not like the idea of being without it, for logistical and/or privacy reasons.

Keep in mind that it is still possible to make a finding that texts were sent, even if they are no longer available. To do so, the investigator would have to assess the credibility of the parties.

Parties who do not know how to retrieve texts

I have to admit that I would not know how to produce a text exchange from my device if I was asked to do so (I hear there’s an app that can help with this, maybe?). I could probably figure it out with a little bit of help from Google, but I’m not sure that I would be comfortable walking a party through the process, especially given the different types of mobile devices out there. I think investigators have to be careful when trying to assist a party, as it could lead to an inadvertent deletion/destruction of evidence. Depending on the importance of the texts, it may be prudent to consider retaining a digital forensics specialist to assist.

Parties who won’t provide the texts

Parties may at times refuse to provide text messages. While the investigator can request texts, they cannot force a party to provide documentation that they do not want to provide. If the party does not have a valid reason for the refusal, the investigator can consider whether it is appropriate to make an adverse inference against that party.

Unsearchable screenshots of messages

Parties at times take screenshots of messages and send these in a format that is not searchable. This is not an issue when dealing with only a few messages, but when the messages are in the thousands, this can make the task of locating specific messages difficult (for example, the investigator may recall reading a particular word in a text, but has no quick way of finding it without looking through the entire exchange). One way of remedying this is to number the pages, and to then create a chart of relevant text messages in a Word document, with page references. While it may take some time to do this, it avoids having to do multiple reviews of the evidence and allows the investigator to retrieve relevant texts quickly.

Text overwhelm

The number of texts that the parties produce during an investigation may feel overwhelming, both in terms of how to interview the parties about these and how to deal with them concisely in the investigation report.

With respect to the interviews, the facts of the case will determine whether the investigator needs to review each text message in the exchange with the parties. If the complainant is alleging that the respondent sent eight or nine vulgar messages, for example, then it makes sense to review each of these with the respondent. There could be a case, however, where the complainant takes issue with the types of messages that the respondent has sent, and there are dozens of examples of such text messages (for example, the complainant takes issue with the respondent sending heart emojis in work texts or that they always use swear words when texting). If there are many examples of these in the text messages, it may not be necessary to take the respondent through each one. That said, it is prudent to provide the respondent the entirety of the text exchanges in which such messages appear.

Regarding the report, it can be difficult to know how much of the text exchanges to reproduce. Again, this depends on the case. If the allegations refer to very specific texts, then I think it works well to reproduce them in the report. If the allegations relate to different types of messages (as noted in the examples in the paragraph above), then I think it is helpful to reproduce some examples of these texts in the report. This gives the reader a sense of the flavour of the exchanges and avoids them having to read through hundreds of text messages.

No matter what issue arises relating to the collection of text messages, remember that it needs to be addressed on a case-by-case; there is no “one size fits all” approach and there needs to be a careful consideration of all of the circumstances of the case when deciding how to proceed.

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