91% of American adults own a cell phone.

97% of cell phone owners ages 18 to 29 send and receive texts.

94% of owners ages 30 to 49 send and receive texts.

75% of owners ages 50 to 64 send and receive texts.

Chris Christie. The production of text messages and e-mails between aides to New Jersey Governor Chris Christie and his appointees at the Port Authority of New York and New Jersey led to accusations that in September 2013, one of Christie's senior aides instigated the closure of several lanes on the New Jersey side of the George Washington Bridge. The text messages implied that the lane closures, which caused hours-long traffic jams in Fort Lee, New Jersey, were acts of political retribution by the Republican administration against the Democratic mayor of Fort Lee.

Anthony Weiner. Former New York Congressman Anthony Weiner's New York City mayoral campaign was derailed in the summer of 2013 when the press uncovered racy text messages that the married politician allegedly sent to a 22 year-old woman, more than a year after he resigned from Congress for posting inappropriate pictures of himself on Twitter.

A party has a duty to preserve written communications, including text messages, related to the litigation (see Passlogix, Inc. v. 2FA Tech., LLC, 708 F. Supp. 2d 378, 415-17 (S.D.N.Y. 2010) (defendants sanctioned $10,000 for deleting, among other electronic documents, 91 text messages) and Cytec Carbon Fibers LLC v. Hopkins, No. 11-cv-217, , at *2, *4 (D.S.C. Oct. 22, 2012), report and recommendation adopted by (D.S.C. Dec. 5, 2012) (court imposed adverse inference jury instruction when the defendant inadvertently deleted his text messages while trying to download them to his computer for production to plaintiffs)).

A company must explain to its employees that the litigation hold includes text messages (see In re Pradaxa (Dabigatran Etexilate) Prods. Liability Litig., No. 12-md-2385, , at *17, *20 (S.D. Ill. Dec. 9, 2013) (defendants sanctioned $931,500 for, among other things, failing to preserve and produce employees' text messages)).

Failure to stop the automated deletion of employee text messages on company-issued phones is sanctionable (see In re Pradaxa, , at *17)).

Discarding a cell phone containing potentially responsive text messages is sanctionable (see Christou v. Beatport, LLC, No. 10-cv-2912, , at *13-*14 (D. Colo. Jan. 23, 2013) (court imposed a permissive adverse inference instruction when the defendant failed to preserve his text messages before allegedly losing his cell phone); Barrette Outdoor Living, Inc. v. Mich. Resin Reps., No. 11-cv-13335, , at *3-*4 (E.D. Mich. Aug. 1, 2013) (defendant sanctioned $35,000 and court imposed an adverse inference jury instruction when the defendant discarded his cell phone containing text messages between himself and other defendants)).

The absence of any text messages or e-mails on employees' mobile devices is a red flag (see Se. Mech. Servs., Inc. v Brody, 657 F. Supp. 2d 1293, 1302 (M.D. Fla. 2009) (court imposed an adverse inference jury instruction when the defendants' BlackBerries had been wiped of e-mails, text messages, calendar items, contacts and attachments) and In re Pradaxa, , at *17 (the defendants should have questioned why none of their employees produced any text messages in the litigation)).

Text messages are as prominent a form of communication as e-mails (see In re Pradaxa, , at *18 ("texting has become the preferred means of communication") and Passlogix, Inc., 708 F. Supp. 2d at 417 (disregarding the defendant's claim that the deletion of text messages was harmless because they merely confirmed meeting dates and times)).

Litigation Hold Letter (to Client).

Litigation Hold Notice.

Data Collection: Document Custodian Interview Questions.