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Text Messages as Digital Evidence: Document or Structured Data?

Understanding the Makeup of a Text-Based Conversation

Text messages are becoming a common component of investigations and legal disputes. This is because text-based and multimedia communications are the norm in our daily lives, so much so that the word “text” has become a verb. We say to people, “Just text me.” We often resort to texting someone more than any other communication medium and will “shoot someone a quick text” before even thinking about calling them, sending an email or practically anything else. We communicate with emojis, animated gifs, and short videos. C’mon, haven’t you heard of a Tik Tok?

However, when it comes to text-based communications such as SMS, MMS, iMessage, #Slack and others, often arises the question of “What makes up a conversation?” This question becomes fodder for debate given that there is no clear beginning or end to a chat application conversation -- they just keep going! This debate is driven in the legal world by the need to make text message review “document based.” So where does a text conversation begin and end? The answer? It doesn’t.

Well, everything has a beginning, after all someone had to send the first text, but when it comes to chat style communications, one could say that they never end, they just “resume.” This is because #Slack, SMS and the like do not follow the old school concept of a document, and that’s because this style of communication is not a document. It’s a conversation. But the legal world wants things like a chat or iMessage conversation to be a document, and often mistakenly tries to treat them as such.

Text and multimedia conversations are not a document, and never were a document. They are structured data. This is because they reside in a database and consist of thousands of entries, whether located on your phone or computer. In basic terms, each person in a chat or SMS conversation is given a unique ID, which is made up of their phone number, email, or username, and then each conversation is then assigned a thread ID, which is the unique identifier that “threads” the conversation. Each message then has a date and time stamp that determines the order of the conversation. If you never close the chat, the “thread” never ends. It just resumes at a later date and picks up where it left off.

Quit trying to treat text-based communications like a document, and more like the conversation that they were intended to be in the first place.

One could say email is similar because technically it resides in a database too. However, the difference with email is that each email has a very distinct beginning and end, often based on a subject line (we won’t dive into the actual data structure behind it). If an email conversation changes, people often change the subject line of the email. You can also go back and selectively respond to a specific email in a chain, essentially “splintering” a conversation.

This isn’t the case with texting. One never announces the topic of a text message; they just send it. If you missed the first message, you can’t go back and respond to just that message, you chime in when you see the conversation notification on your phone and your response is placed in the order in which it was received. Just like a normal conversation, much like if you were “late to the party.”

So how do we deal with this in electronic discovery? The answer? Quit trying to treat text-based communications like a document, and more like the conversation that they were intended to be in the first place. However, the world of electronic discovery world wants a document because the majority of applications built for review started with the world of “documents”. Everything was a scan of a memo, or a print out of an email and all its attachments, so now we are trying to make text messaging “fit” into that box. Stop. Just stop.

Logically speaking, each entry in a text conversation is its own “document”. It represents a single record in a database, and each message can stand on its own, whether a single sentence or an animated gif. Combined they represent a conversation, which gives the sentence or animate gif context. During discovery, you should be able to mark an individual text message as “hot” or “responsive” and then mark the overall conversation as “relevant”, don’t you think? If you can’t do this, then maybe you need to reevaluate your choice of investigation or review platforms.

ESI Analyst addresses text-based communications as they were meant to be -- as a conversation. Each entry is an “item” and can be individually tagged as such. The conversations can then be treated as a parent “thread”, and tagged separately than the individual messages within. This is the logical evolution of review. We need to look at structured data as just that -- structured data. If you would like to see the next generation of collaborative review technology, arrange a demonstration today.

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