By: Rashi Mangalick


Text messaging has far surpassed the amount of phone calls made in the United States for over seven years. New and innovative communication types have been emerging from the technology market and penetrating into other arenas for years, with many applications (“apps”) specifically devoted to messaging someone else at an instant rate. Not simply for personal use, but industry leaders in the work setting have also been using text communication with their employees and co-workers.  (The meme of Hillary Clinton in sunglasses texting on her phone flashes before me.) This high level of text communication raises the issue of whether employers should regulate types of communication their employees can use and, if so, how far employers can go in establishing these boundaries.


NuVasive, Inc, [NuVasive], a Californian medical device company, sued Madsen Medical [Madsen], a medical device distribution company based in Ohio, after Madsen did not fulfill its distribution contract with the plaintiff.  The District Court of Southern District of California granted Madsen’s motion to amend jury instructions due to the fact that NuVasive could not provide the requested text messages as evidence. These texts could have evidenced a secret agreement between NuVasive and Madsen employees but were not properly preserved. Plaintiff NuVasive had notice of its duty to preserve evidence such as these text messages, but because the company failed to do so, the court allowed an adverse jury instruction accusing NuVasive of not preventing destruction of evidence.


This case raises the issue of whether company regulations can include specifications of communication methods that employees are allowed to use. Establishing standard communication procedures could decrease a company’s liability if and when an issue like the one between NuVasive and Madsen arises. Managers and supervisors could ensure their employees have created a paper trail of communication to show proof of specific conversations or actions. Additionally, specifying allowed communication types can help keep conversations professional, especially given that these discussions are occurring between co-workers.


On the other hand, the question arises: can employers truly regulate the types of communication their employees use? Does that give higher-level associates too much control? Employers cannot stop their staff from becoming friends or having non-work-related conversations with one another; defining which communication methods are allowed may step into the bounds of the employer demanding too much control over the employee. Also, the endless methods and growth of communication may make regulation impossible. Apps like Snapchat pose an especially big problem for important tasks like record keeping. Snapchat is a texting app with which users send a recipient a picture or text message that disappears after a maximum of 10 seconds. Snapchat has become a very popular communication tool among teenagers and young adults. If coworkers use it to chat about topics regarding their jobs, those messages will disappear, only recoverable from the Snapchat servers, and that too for a maximum of 30 days. Coworkers chatting on a platform like Snapchat will not be able to retain messages or maintain records for a later date. This means that court proceedings needing evidence within communications used on apps like Snapchat will likely not be accessible.


This problem is exacerbated when one considers the amount and types of communication necessary to fulfill job requirements. The consulting field, for example, has grown immensely, with many consultants traveling long distances to work Monday through Thursday and then returning home on Friday to rest before another week of traveling. Jobs that involve travel require on-the-go communication, and conversations over easy methods like texting cannot be avoided.


In the case at bar, NuVasive knew it had a duty to preserve the texts in question, but it did not. Some may argue that it performed its due diligence by telling its employees to preserve the messages. The fact that the employees did not abide by this rule is not NuVasive’s fault. While this has some truth to it, employers like NuVasive should have ways to implement and enforce the policies it sets in place. Without enforcement mechanisms, a rule can easily be broken.


Student Bio: Rashi Mangalick is a staff member on the Journal of High Technology Law and a 3L focusing her efforts on health law. She obtained an undergraduate degree from the University of Wisconsin- Madison in Economics and Sociology.

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