- posted: May 20, 2023
Apple’s new iOS 16 operating system for iPhones and iPads includes features that companies and lawyers should know about because of their implications for eDiscovery. Released in September 2022, the iOS 16 introduced the capability to edit, recall and recover iMessages. Users had wanted these features for many years, and now that they exist Apple will most likely include them in future iOS updates. Anyone involved in litigation should understand them and potentially develop a process to account for them during eDiscovery.
The new iMessaging features allow users to:
- Recall a sent message for up to two minutes after sending it. (Apple calls this “unsending.”)
- Edit sent messages for up to 15 minutes after sending.
- Recover deleted messages for up to 30 days after deletion.
Notably, these new capabilities exist only for iMessages. SMS text messages cannot be edited or unsent.
The capability to edit and recall messages could have a significant impact on eDiscovery. Preservation of digital data as evidence is essential to the eDiscovery process. These new iOS features make it easier for parties and their lawyers to alter or erase communications that arguably should be discoverable. This could be considered spoliation, which is defined as intentionally, negligently or accidentally destroying relevant evidence.
Requests for document production during litigation will have to be broad enough to include recently deleted iMessages on any party’s device that runs iOS 16. There are also likely to be more interrogatories inquiring as to whether any iMessages were deleted and why.
Further, companies and their law firms will need to update their legal hold orders — which preserve evidence related to pending or potential litigation — to include iMessages and procedures for restoring deleted messages.
It remains to be seen how the updates to iMessaging will affect eDiscovery. It is possible that accusations of spoliation will become more common and lead to more time and expense in civil litigation. On the other hand, the ability to recover deleted messages for up to 30 days might help save parties from accusations of destroying evidence, even by accident.
At Pullin, Fowler, Flanagan, Brown & Poe, PLLC in Charleston, West Virginia, we would be happy to advise your company about making changes in litigation policies or procedures to account for the new iOS system features. Call 304-344-0100 or contact us online to speak with our team, which serves clients in West Virginia, Ohio and Kentucky.