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Recent Case Highlights Importance Of Preserving Business-Related Texts


A case out of Texas serves as a warning to employers about how crucial it is to preserve business-related texts between employees, even on their own personal devices, or risk sanctions in court.

Plaintiff Carlos Miramontes had been working for his employer for nearly 30 years when it was acquired by another company, Peraton, Inc.

Peraton quickly initiated a reduction in force that it referred to internally as “Project Falcon.”

It claimed the RIF was motivated by “budgetary constraints.”

Miramontes was terminated in the first round of layoffs.

During the termination meeting, his manager allegedly brought up Miramontes’ age, telling him twice without prompting that he was not being terminated for that reason.

The manager allegedly did this on his own without Miramontes bringing up his age first.

Miramontes suspected that the company was really motivated by age and race and not budgetary concerns and hired a lawyer, who sent the company a letter seeking $500,000 to settle the dispute and demanding that all documents relevant to the claim be preserved, including texts.

The employer issued a letter instructing managers to preserve emails related to Miramontes’ claims but didn’t mention texts.

One of the managers who selected Miramontes for the RIF admitted under oath during a deposition that he read the demand letter, but not the part about text messages, and that he immediately sent “one or two” texts to the other manager involved in the selection process.

But he couldn’t produce the texts because nobody at the company told him to save them.

Miramontes moved for sanctions.

The company argued in response that it didn’t control the text messages because they were on the managers’ personal devices and there was no company policy giving it the right to obtain them.

But a U.S. District Court judge ruled that because employees regularly conducted business over their cell phones, the company did have control over them.

She also found that deletion of the messages was intentional and in bad faith, that the texts potentially could have supported Miramontes’ claims and that he suffered prejudice as a result.

Accordingly, the judge denied the company’s motion to dismiss the case, set a quick trial date and ruled that a jury could infer that the texts were deleted because they would be damaging to the company’s case.

If your own employees use their personal devices to communicate about business-related matters, it’s critical to ensure your policies address the issue of preserving such communications. A local employment attorney can help.