In the Tuesday filing to the United States District Court for the District of Columbia, Justice Department lawyers representing the EPA said the agency will soon file a notice that it may have misplaced records that it was legally required to retain.

“Defendant has decided to formally notify the National Archives and Records Administration (NARA) about the potential loss of federal records relating to text messages,” the lawyers told the court.

Once it files that notice the CEI’s claim will become moot, since the records do not exist, the agency said. Lawyers will ask the court for a hearing to dismiss the case.

Despite the filing, EPA spokeswoman Liz Purchia said the agency maintains that the text messages neither had to be preserved nor were subject to disclosure. Text messages can legally be deleted, she said.