A Jacksonville design-build firm gets a demand letter from a former project manager who says he was shorted commissions. The entire relationship lived in text messages and a workplace chat channel — scope changes, price approvals, promises about bonuses. The owner forwards the letter to her insurer and keeps running the business. Nobody touches the phones. Nobody touches the chat settings. Three months later, when counsel finally asks for the messages, half of them are gone: the chat workspace was purging anything older than ninety days, and the project manager's company phone was wiped and reissued the day he left.
That is the shape of a modern evidence problem. The dispute was never really about the merits. It became about what disappeared, and why nobody stopped it. After 30 years of litigation and pre-suit work, I can tell you the pattern almost never changes: the most important evidence is the most fragile, and it is usually destroyed by routine, not by anyone deciding to hide it. Here are the five modern data sources that vanish before a lawsuit is filed, and what preserving them actually requires.
1. Text Messages on Personal and Company Phones
Text messages are electronically stored information, discoverable in Florida the same way email is. The problem is where they live. A text thread sits on a device someone carries in their pocket, and that device gets dropped, upgraded, wiped, traded in, or handed to the next employee. Many phones default to deleting older messages to save space. When a key employee leaves, the single most common mistake a business makes is reclaiming the phone and factory-resetting it before anyone images what was on it.
Preserving texts means identifying whose phones matter, stopping any auto-delete setting, and making a forensic image of the device — not a screenshot. Screenshots lose the metadata that proves a message is authentic and unaltered, and they are trivially disputed. If a departing employee's phone holds relevant messages, image it before it is wiped, and document the chain of custody.
2. Workplace Chat: Slack, Teams, and Google Chat
Business now happens in channels. Decisions that would once have been an email — or at least a memo — are now a thread in Slack or Microsoft Teams, complete with reactions, edits, and file shares. Courts treat that data as discoverable, but most organizations run these platforms with a retention policy that quietly deletes messages after a set window. On many plans, the default is to keep everything; on others, it is to purge on a schedule the administrator chose once and forgot.
The moment a dispute is foreseeable, someone has to find out what the retention setting actually is and suspend it in writing, working with whoever administers the platform. Turning off auto-deletion is not a preservation strategy by itself, but leaving it running is a guaranteed way to destroy evidence you had a duty to keep. Export the relevant channels and direct messages in a format that preserves the metadata, and record what was exported and when.
3. Ephemeral and Disappearing Messages
Signal, WhatsApp disappearing messages, Snapchat, and the "vanish mode" features built into ordinary apps are designed to leave no trace. That design is a feature for private life and a serious problem in litigation. If people involved in a dispute have been communicating on an app set to auto-delete, continuing to let it delete after the duty to preserve attaches is exactly the conduct that draws a sanctions motion — and the deliberate use of disappearing settings is the kind of fact a court remembers.
The fix is unglamorous: identify who used what, turn the disappearing feature off for the people in scope, and preserve whatever still exists. Then decide, with counsel, whether the prior use of ephemeral messaging is itself something you need to address head-on. Pretending it did not happen is worse than owning it.
4. Cloud Collaboration Files and Their Version History
A shared Google Doc or a file in a collaborative workspace is not one document — it is a living record with a version history, comments, and an edit trail that can show who changed what and when. That history is often the most valuable evidence in a dispute over who agreed to what, and it is also the easiest to lose. When a departing employee's account is deprovisioned, the files they owned can be deleted along with the account, version history and all.
Before any account is closed or any workspace is cleaned up, transfer ownership of relevant files and preserve the version history. Suspend the automatic deletion tied to account offboarding for anyone whose data is in scope. A clean-up that felt like good hygiene can look like spoliation from the other side of a lawsuit.
5. Personal Devices Under BYOD Arrangements
When employees use their own phones and laptops for work, relevant evidence ends up on devices the company does not own and cannot simply seize. That does not make the data undiscoverable — it makes preservation harder and more delicate. The business still has to take reasonable steps to preserve work-related communications on personal devices, which usually means a clear written instruction to the custodians not to delete anything relevant and, where appropriate, a targeted collection with the employee's cooperation.
A bring-your-own-device policy that never addressed preservation is a gap you discover at the worst possible time. The time to solve it is before a dispute, by defining in advance how work communications on personal devices get preserved when the duty attaches.
Why the Routine Is the Enemy
The through-line across all five sources is that the destruction is automated. No one decides to destroy evidence; the systems do it on a schedule that was set long before anyone imagined a lawsuit. Florida courts forgive a reasonable, routine retention policy. What they do not forgive is the failure to switch it off once the duty to preserve attached. That duty does not wait for a filed complaint — it starts when litigation becomes reasonably foreseeable, which is often the day the demand letter lands.
For the mechanics of standing up a defensible hold, see the companion piece on the five litigation-hold mistakes that trigger spoliation sanctions. The single most expensive of those mistakes — leaving auto-delete running — is exactly the one that eats text messages and chat data first.
What Preservation Actually Looks Like
Done right, preserving modern data is a short, boring sequence: identify the custodians and the sources, suspend every auto-delete and offboarding process that touches them, collect the data in a way that keeps its metadata intact, and document each step so the record can be sworn to later. Done wrong — or not at all — it becomes a spoliation motion that decides the case before anyone reaches the facts. The cost of doing it right is a fraction of the cost of explaining, months later, why the most relevant messages no longer exist.