Businesss Texting is Cringeworthy

Lawyers usually encourage clients to avoid this practice.

By Andrew W. Bonekemper On Nov 6, 2019

Text messaging has become a common and acceptable method of business communication. In fact, texts can be the preferred method of communication in our current fast-paced, technology-driven business world. But, conducting meaningful business by text – with its informality and brevity, stored locally on each individual device – can lead to a series of unintended legal headaches.

Some pitfalls of conducting business by text result from the very nature of texting. Texts are short, informal and grammatically questionable, and most are composed without much thought, often in the midst of other activities. Take the example of the following hypothetical exchange between a salesperson and a customer, who are also friends:

>> “Thx for the tix, game was great! Ur co needs to cut me 10% … im in crosshairs of accting dept. Drinks Thursday at the convention!”

 

>> “Done and done.”

Certainly, the salesperson did not stew over that response, or have a supervisor review it before it went out. Did the salesperson just agree to reduce the company’s prices one time? On all business going forward? Or did he just agree to meet for drinks? More importantly, does a business want a judge or a jury determining the meaning of that exchange on a big contract? Certainly not.

Another unfortunate byproduct of the informality of texting is employees’ treatment of texts as “offline” communications. In countless instances, employees have communications via text that they would never have on company e-mail. Those texts could contain office gossip, discuss a mistake made by the company or circumvent some restriction on use of the company e-mail. In litigation, those communications are just as discoverable and admissible as any work e-mail.

Other legal woes are less obvious. Most businesses today have a bring-your-own-device policy for employees. Finding an important communication with a customer or vendor that resides on the personal device of an employee is challenging enough, and more problematic if the employee fears he or she made a mistake and is wary of disclosing the error. When employees leave, the company may lose access to important communications.

Likewise, the company’s confidential information – maybe even trade secrets – can leave with an employee. Most enterprise software does not control text messaging, so even if a business can remotely disable company e-mail and apps on a departing employee’s device, the texts remain. Marshalling all of that information in the event of litigation presents an additional series of logistical challenges beyond the obvious discomfort in asking employees to turn over their personal devices for inspection.

Lawyers usually encourage clients to avoid conducting their business by text. Of course, most clients follow that advice by texting their lawyer with some questions!

About the Author

Andrew W. Bonekemper is a litigator and adviser to businesses, individuals and governmental entities at Fox Rothschild.

To access more business news, visit NJB News Now.

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