Apple iOS 16 Release: Should You Think Twice Before Rewriting History?

Each year Apple iPhone users worldwide are on the edge of their seats to get a glimpse of the new features the Apple iOS release will bring at the Worldwide Developer Conference (WWDC). This year didn’t disappoint with new features ranging from enhanced personalization to the previously bland locked screen to our personal favorite, SharePlay via Messages, which allows users to share synchronized activities like movies, music, workouts, etc. Who wouldn’t love to watch Top Gun: Maverick with a bunch of their closest friends from around the World! But one feature that drew the attention of myself and many of my colleagues is the ability to delete and edit iMessage text messages after they are sent and recover recently deleted messages up to 30 days after deleting them. With iPhone users in the United States making up around 50% of subscribers, this new feature has the potential to have an impact on the way parties to a conversation (and those that may view it later, like a court or jury) interpret a conversation during (and more importantly, after) the exchange. While many users are cheering on these upcoming changes, others, like us lawyers, have been thinking about the potential implications these updates could have on the litigation process, internal business investigations and beyond.

So, what are the potential negative legal implications of being able to edit and delete recently sent messages, as well as recover deleted messages? The biggest two that immediately come to mind are spoliation of evidence and e-discovery. Spoliation of evidence arises when one side of a dispute suspects or uncovers that the other party has deliberately, negligently, or accidentally destroyed relevant evidence. It isn’t a far-fetched scenario that a client who is having a business dispute with a partner or employee may re-think a damaging statement sent via a heated text exchange (even after the recipient has already read the message and Pandora’s box has already been opened). In this fact pattern, if an attorney is representing the sender of the text, they may advise their client that they should clarify or walk-back the damaging written statement (instead of deleting it), while, on the other hand, if that same attorney was representing the recipient of the same text, they may recommend a screenshot of the exchange to forever document it in case it was later edited or deleted.

In this (or a similar) scenario, the consequences of spoilation of evidence can be troublesome – from adverse inferences against the party who destroyed the evidence to monetary sanctions to a dismissal of a claim. Courts don’t take it lightly, and neither should those involved in the judicial process. The other potential significant implication is the impact on e-discovery. Discovery of electronically stored information (ESI), like text messages on a party’s cellphone, has created added complex, costly, and time-consuming obstacles to the practice of law (and of the businesses the clients lawyers represent). It is likely litigants will see an expansion of requests for document production to include recently deleted iMessage text messages or interrogatories (which are written questions sent by one party to another as part of discovery) concerning if, when, and why important text exchanges may have been edited or, even worse, deleted. These are just two potential negative implications of these upcoming updates to iMessage, but once this update is launched, we anticipate that creative litigants and lawyers everywhere will come up with other uses, such as impeachment of testimony, pre-dispute settlement pressure points, etc., so be cautious before you try to rewrite history by editing (or deleting) a sent text message.

While lawyers are usually associated with being the bearer of bad news, this client alert is different! We believe there are many positive takeaways that could stem from these upcoming updates to iMessage. One of these promising takeaways is it allows users to set the record straight and avoid any confusion as to intended meaning. We all have experienced sending a text too quickly and not realizing that autocorrect changed a word that totally changed the underlying premise of a message. This is probably the most common situation, but what about those situations when you hit send and then realize oops you sent a text to the wrong person. It actually happened to a lawyer at our firm (who will remain nameless since his story was shared on the condition of anonymity) when he messaged a surprise proposal video by mistake to his soon-to-be fiancé before he popped the question. This is a more personal example where the feature would have come in handy, but what about in the business world where text communications have taken the place of good old fashion face-to-face conversations? From giving attorneys the ability to delete or edit a text concerning a private matter of a client sent to the wrong recipient to allowing employers who hit the “send” button too quickly on a confidential executive team communication (like upcoming layoffs, etc.) that inadvertently included a lower-level employee, the possibilities are endless. Ultimately, giving people the ability to fix an honest mistake or correct an impulsive response has great utility, particularly in a fast-paced, digital communication-driven society.

Apple iOS has come a long way from the first iOS released in June of 2007 (where there wasn’t an App Store!), and its continued evolution, like all technological advances, will have both positive and negative legal applications long into the future. However, for these particular updates to iMessage, our parting words of wisdom are: Think twice (maybe three times) before you delete or edit a sent iMessage because the implications could end up being worse than if you just left well enough alone.

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This alert should not be construed as legal advice or a legal opinion on any specific facts or circumstances. This alert is not intended to create, and receipt of it does not constitute a lawyer-client relationship. The contents are intended for general informational purposes only, and you are urged to consult your attorney concerning any particular situation and any specific legal question you may have. We are working diligently to remain well informed and up to date on information and advisements as they become available. As such, please reach out to us if you need help addressing any of the issues discussed in this alert, or any other issues or concerns you may have relating to your business. We are ready to help guide you through these challenging times.

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