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March 16, 2023

Casual Conversations

Increasingly, litigators are finding that the key evidence they need is on smartphones, in the SMS (text messaging) applications. And those messages be damning! Why? Because people treat text messages as private conversations rather than business correspondences. But, regardless of what employees think of these communications, technology-savvy attorneys know to ask for data from smartphones, including text messages. The value of that request is evident in the current Dominion Voting Systems defamation suit against Fox News—US Dominion, Inc. v. Fox News Network, LLC.

Emails Tell One Story

Dominion Voting Systems has accused the Fox News Network of knowingly spreading false information about the validity of the 2020 election after Donald Trump’s loss to Joe Biden. For those who haven’t delved into the details, Dominion apparently informed Fox more than once that voter fraud information was inaccurate.
So, how do they support that claim? They sent the information via email, and the production of emails has become standard in eDiscovery. So, they just needed to produce the emails to prove that they had indeed shared details about investigations into the security of the process. Of course, Fox could claim they received those emails but found the conclusions questionable. So, there was no intent to share false information and defame Dominion.

But… then the text messages were collected from Fox employees.

Text Messages Tell Another Story

Those messages paint a clear picture of the attitudes and beliefs of the Fox News hosts including Tucker Carlson and Laura Ingraham.

For example, texting on November 18, 2020, to Laura Ingraham about Trump’s lawyer Tucker Carlson wrote, “Sidney Powell is lying by the way. I caught her. It’s insane.” “Sidney is a complete nut. No one will work with her. Ditto with Rudy [Giuliani, the ex-president’s other lawyer at the time],” replied Ingraham. That is one of the reasons Dominion is claiming that Fox acted maliciously. And Dominion is asserting that financial incentives drove those malicious actions: “We worked really hard to build what we have. Those f*****s are destroying our credibility. It enrages me,” Carlson wrote about the claims of a stolen election. However, he believed they had no choice but to go along with the story, “What [Trump]’s good at is destroying things. He’s the undisputed world champion of that. He could easily destroy us if we play it wrong.” So the “unguided missile” continued to find a vehicle on the Fox News Network.

Making the Case with Smartphone Data

Despite the substantial discrepancies between personal and broadcast beliefs, legal analysts say Dominion’s legal team has an uphill battle proving malice. But imagine if Dominion hadn’t collected the smartphone data from dozens of Fox employees’ personal devices. Much of the most damning smartphone data evidence is found in the text messages. So rather than fighting an uphill battle, the plaintiffs would be fighting with blinders on. They would not have an in-depth view into the personal beliefs of those Fox decision-makers. But that team knew enough to ask for more than emails and documents. They understood that cell phones are the most popular communication devices and asked for texts. This request could be the deciding factor in this matter.

Take Away

Don’t limit discovery requests to emails and documents from computers, networks, and the cloud. In today’s world, it is imperative that litigators and investigators ask for and review smartphone data, including text messages. Unfortunately, not all forensics tools include that capability because the requirements and technology are specific to these devices. ModeOne specializes in remote smartphone collections, simplifying the process and making previously unavailable information available to deliver the rest of the story. Schedule your demo today.