Discovery Request for Deleted WhatsApp Messages

I’m curious what happens if one party initiates a document request during discovery for a full transcript of WhatsApp (texting) transcripts and the other party claims they’ve deleted them all. In this case is that particular request simply dropped? Also, can one party subpoena documents ahead of a permanent custody hearing even if it’s not in the context of Discovery or if the window for Discovery has passed?

It’s wise to send a “litigation hold” letter to the opposing party at the beginning of a case which gives the opposing party notice that certain documents are discoverable, they may be formally requested pursuant to the litigation, and they shall not delete them.

Otherwise, if the opposing party deletes them prior to the formal discovery request being made, and they are not recoverable in any way, then there would be no way for that party to comply with the request. If the opposing party deletes them after being served with formal discovery, then sanctions can be placed on that party by the court for failing to adhere to the discovery request(s) and acting in bad faith.

A party can subpoena documents as any time. Subpoenas are different from discovery. However, if you are attempting to subpoena documents from the other party, the proper procedure is discovery, not subpoenas.

Anna Ayscue

Attorney with Rosen Law Firm Cary • Chapel Hill • Durham • Raleigh • Wake Forest

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