Preserving Text Messages: FRCP 37(e) and the Duty to Preserve

Last updated October 15, 2026. Written for attorneys handling federal civil cases. This is general information, not legal advice; check your court's local rules and controlling case law.

Federal Rule of Civil Procedure 37(e) decides what a court can do when electronically stored information, including text messages, is lost because a party didn't take reasonable steps to preserve it. If the texts can't be restored or replaced, the court can order measures to cure the prejudice. The harshest sanctions (an adverse inference, dismissal or default) require a finding that the party intended to deprive the other side of the information. For text messages, the duty usually starts before anyone serves a request, and the most important fixes take minutes.

What does FRCP 37(e) say?

Rule 37(e) sets a threshold and then two tiers of remedies. The full text:

"(e) Failure to Preserve Electronically Stored Information. If electronically stored information that should have been preserved in the anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it, and it cannot be restored or replaced through additional discovery, the court: (1) upon finding prejudice to another party from loss of the information, may order measures no greater than necessary to cure the prejudice; or (2) only upon finding that the party acted with the intent to deprive another party of the information’s use in the litigation may: (A) presume that the lost information was unfavorable to the party; (B) instruct the jury that it may or must presume the information was unfavorable to the party; or (C) dismiss the action or enter a default judgment." — Fed. R. Civ. P. 37(e)

All three threshold conditions must be met before the rule applies: the information should have been preserved, it was lost because a party failed to take reasonable steps, and it can't be restored or replaced through more discovery. Only then does the court look at prejudice under (e)(1) or intent under (e)(2).

Do text messages count as electronically stored information?

Yes. SMS texts, iMessages and messages in apps like WhatsApp are stored electronically on phones and in cloud accounts, and courts apply Rule 37(e) to them. The 2015 Committee Note ties the rule to "the ever-increasing volume of electronically stored information" and the many devices that generate it. Paisley Park Enterprises, Inc. v. Boxill, discussed below, is one example of a federal court applying Rule 37(e) to lost texts.

When does the duty to preserve text messages begin?

Usually when litigation is reasonably foreseeable, which can be well before a complaint or a discovery request. Rule 37(e) doesn't create the duty; it relies on the common-law one. The 2015 Committee Note says: "Many court decisions hold that potential litigants have a duty to preserve relevant information when litigation is reasonably foreseeable." It adds: "The rule does not apply when information is lost before a duty to preserve arises." (Committee Note to the 2015 amendment)

In Paisley Park Enterprises, Inc. v. Boxill, No. 17-cv-1212 (D. Minn. Mar. 5, 2019), the court found the duty attached on February 11, 2017, the date of an email showing that one defendant anticipated litigation. From then on, the court wrote, the defendants "were required to take reasonable steps to preserve Staley and Wilson's text messages." (Paisley Park v. Boxill order)

In an employment case, the trigger date depends on the facts. For the employee it may be the day they first talk to a lawyer about a claim; for the employer it may be a demand letter, an internal complaint that signals a claim, or an agency charge. Pin the date down early, because everything after it is measured against it.

What are "reasonable steps" to preserve text messages?

Steps that a careful party in your position would take, sized to the case; perfection isn't required. The Committee Note says: "This rule recognizes that 'reasonable steps' to preserve suffice; it does not call for perfection." It also lets courts weigh a party's sophistication and resources.

For phones, the bar is low. In Paisley Park, the defendants never turned off auto-delete and later wiped and discarded their phones. The court noted: "It takes, at most, only a few minutes to disengage the auto-delete function on a cell phone." It held: "Failure to follow the simple steps detailed above alone is sufficient to show that Defendants acted unreasonably." It also rejected the argument that the phones were personal, because the defendants used them for business.

A working checklist for text messages:

1. Name texts in the hold notice. Write "text messages, iMessages, WhatsApp and other messaging apps," and list the custodians and their numbers, including personal phones used for work.
2. Turn off auto-delete the same day. On an iPhone, Settings > Messages > Keep Messages should be set to Forever. Check disappearing-message settings in apps such as WhatsApp and Signal.
3. Stop phone swaps and resets. Tell custodians not to trade in, wipe, reset or replace a phone until it has been collected.
4. Collect, don't just hold. A hold depends on the custodian. A collection captures the messages and their metadata as they are now, before an upgrade, a reset or a lost phone.
5. Send a preservation letter to the other side that names text messages and personal devices, so their duty and its start date are on paper.
6. Write down what you did. A dated record of what was preserved, when and how is your evidence of reasonable steps if anything goes missing later.

What happens if text messages are lost anyway?

First, the court asks whether the texts can be restored or replaced; if they can, Rule 37(e) stops there. The Committee Note says: "The initial focus should be on whether the lost information can be restored or replaced through additional discovery." With texts, the other end of the conversation is often the replacement: the recipient's phone, a cloud backup, or another member of a group chat.

If the texts are gone for good and the other side is prejudiced, Rule 37(e)(1) allows "measures no greater than necessary to cure the prejudice." In Paisley Park, third parties' copies covered some messages, but texts exchanged only between the two defendants could not be recovered. The court ordered the defendants to pay the plaintiffs' reasonable fees and expenses and to pay "into the Court a fine of $10,000," and it deferred any adverse-inference instruction until closer to trial.

Don't count on the carrier as a backstop. Carriers generally won't produce message content in a civil case, as our guide to subpoenaing text messages from a phone carrier explains. The phones are the source.

When can a court give an adverse inference for deleted texts?

Only after finding that the party acted with intent to deprive the other side of the information. Rule 37(e)(2) reserves the presumption, the jury instruction, dismissal and default for that finding. The Committee Note explains why: "Negligent or even grossly negligent behavior does not logically support that inference."

Courts often infer intent from circumstances. In Paisley Park, after reviewing the timing of the phone wipes and the notice the defendants had, the court found that they "intentionally destroyed evidence."

Hunters Capital, LLC v. City of Seattle, No. C20-983 TSZ, 2023 WL 184208 (W.D. Wash. Jan. 13, 2023), is a widely reported example. Thousands of texts on city officials' phones were lost after preservation letters arrived, through a 30-day auto-delete setting and phone resets. As reported, the court found intent to deprive under Rule 37(e)(2), allowed the jury to presume the lost texts were unfavorable to the city, and awarded fees. It also allowed evidence that one plaintiff had lost phone data, a reminder that the duty runs both ways. (eDiscovery Today summary)

What should plaintiff-side employment lawyers do first?

Preserve your own client's phone before you ask the employer for theirs. In many employment cases the employee's texts with managers and coworkers are central evidence, and a personal phone is easy to upgrade, reset or lose mid-case. Rule 37(e) applies to plaintiffs too, and defense counsel will ask about gaps.

At intake, tell the client in writing not to delete anything or change phones, turn off auto-delete with them, and collect the relevant threads with full metadata. Then send the employer a preservation letter that names text messages on company phones and on personal phones that managers used for work. For what comes after collection, see are text messages admissible in court? and a phone backup vs. a forensic extraction.

Where Hearsay fits

Hearsay lets you collect texts from your client's own iPhone or Android without taking the phone. The client installs a desktop app, connects the phone by cable and runs the collection from home in about an hour, and keeps using the phone. You can let the client choose what to share or set the criteria in advance. It covers iMessage, SMS, MMS, RCS and WhatsApp, and every extraction comes with audit logs, deletion reporting and chain-of-custody records, with exports to PDF, Excel or RSMF.

That turns "collect, don't just hold" into a same-week task with a record of what was collected and when. See how Hearsay works for employment cases.

Frequently asked questions

Does FRCP 37(e) apply in state court?

No. Rule 37(e) governs civil cases in federal court. State courts apply their own rules and case law on lost evidence, so check the rule in your jurisdiction.

Does deleting a text message automatically lead to sanctions?

No. Rule 37(e) applies only if the texts should have been preserved, were lost because reasonable steps weren't taken, and can't be restored or replaced. Even then, the court needs prejudice to order curative measures, and intent to deprive for an adverse inference, dismissal or default.

Is leaving auto-delete on a failure to take reasonable steps?

It can be. In Paisley Park Enterprises v. Boxill, the court noted that disabling auto-delete takes "at most, only a few minutes" and held that failing to take simple steps like that was enough to show the defendants acted unreasonably.

Do personal phones have to be preserved?

If they hold relevant texts, they can. In Paisley Park, the court rejected the argument that the defendants' phones were personal, because they used them for business. Name personal devices used for work in hold notices and preservation letters.

What counts as "intent to deprive" under Rule 37(e)(2)?

A finding that the party acted to keep the information from being used in the litigation. According to the 2015 Committee Note, negligence or even gross negligence is not enough. Courts often infer intent from circumstances, such as wiping phones after notice of a claim.

Can lost texts be replaced from someone else's phone?

Often, at least in part. Rule 37(e) applies only if the information can't be restored or replaced through additional discovery, so the recipient's phone, backups and other members of a conversation are the first places to look. Texts exchanged only between people who all lost their copies are usually gone.