Preserving text messages after an injury
Preserving text messages can help protect a useful part of the evidence after an accident. A conversation may document a report of an unsafe condition, the time someone requested help or a statement about what occurred. The significance depends on the words and their context.
Start by keeping the conversation in its original form. Keeping the original conversation helps preserve the facts behind your account. A screenshot is convenient, but it may leave out a date, an attachment or the messages immediately before the selected passage.
I would ask how the messages relate to the injury and who participated in the exchange. There is no need to assume that your entire phone should become part of a claim. We can identify potentially relevant material and address privacy concerns through an appropriate process.
If you are replacing a phone or changing a service, mention that before the old device is erased. A routine upgrade can complicate preservation even when no one intended to lose information. Taking care of the records early is usually easier than trying to recover them later.
Save context as well as the sentence that stands out
A short reply can mean something different when read with the preceding question. Preserve the relevant thread, including attachments and the information identifying the participants. A displayed contact name may be a label created by the phone owner rather than proof of the sender's identity.
Screenshots should overlap enough to show the sequence if they are used as working copies. Keep them unedited. An export or other preservation method may be appropriate for a lengthy exchange, but the method should retain useful information rather than simply producing a block of disconnected text.
For example, a message reporting a broken stair before a fall could matter to notice. The surrounding exchange might identify the location or clarify that the recipient was responsible for maintenance. Those details can be as important as the initial warning.
Voice notes and photographs sent in a messaging app also deserve attention. Saving only the written messages could omit the very item that explains the conversation. Tell your attorney what the exchange included, even if you do not know how to export it.
Account for different devices and applications
Ordinary text messages, messaging applications and cloud backups do not necessarily store information in the same way. Deleting an item on one device can sometimes affect a synchronized account. A backup may also be incomplete or may replace an older version.
Before changing automatic deletion settings or attempting a recovery, get advice about the relevant device and application. Preserve what you can access lawfully. Do not enter another person's account, guess a password or ask someone to obtain messages through unauthorized access.
A damaged phone may still contain useful information. Keep it secure and explain what happened to it. Repeated attempts to repair or reset it without a preservation plan can make later review more difficult.
The appropriate effort depends on the issue. A small, undisputed exchange may need straightforward preservation. A contested conversation central to the case may justify a qualified technical examination. The process should be proportionate to the evidence we actually need.
Relevance and privacy can be addressed together
An injury claim does not automatically make every private conversation relevant. At the same time, a relevant message does not become immune from discovery simply because it was sent privately. The scope of a request and any objections should be evaluated under the applicable rules.
Let your attorney know if a request would include unrelated personal information. That concern can be addressed through an appropriate response or protective arrangement. Deleting messages to prevent disclosure is not the solution.
Preserve unfavorable as well as favorable material. An incomplete record can create a separate dispute and deprive your attorney of the context needed to explain what happened. A candid discussion in advance is far more useful than being surprised by a conversation later.
You also should not try to improve old messages or create a new exchange designed to support the claim. What was actually said is the evidence. If something needs explanation, that explanation can be developed honestly through the proper process.
Turn the conversation into usable evidence
New Jersey's authentication requirement concerns whether an item is what its proponent claims it to be. A phone number alone may not answer every question about who sent a message. Testimony, context and other records can contribute to the foundation.
The rules governing the use of statements are a separate consideration. A preserved message may be valuable for investigation even if its admissibility at trial requires further analysis. It is worth keeping potentially relevant information while those questions are reviewed.
Make a brief note identifying the thread and why it seems important. If you remember a conversation that is no longer visible, describe it accurately and distinguish memory from a saved record. That can help guide a targeted search without overstating what has been recovered.
You do not need to sort every technical issue before asking for help. The practical objective is to keep the relevant information intact so the facts can be assessed fairly. From there, we can determine how the messages fit with the other evidence in your injury claim.
Sources and Further Reading
About Michael B. Fusco
Michael B. Fusco is a New Jersey personal injury attorney certified by the Supreme Court of New Jersey as a Civil Trial Attorney. Read Mike’s biography and credentials.
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General Information
This article provides general information, not legal advice for a particular situation. Laws and policy terms must be applied to the actual facts. Reading this article or contacting the firm does not, by itself, create an attorney-client relationship.