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Case Law Alert -- Fishing Closed: Judge Says No to Production of Deleted Texts

Created on December 8, 2017


E-Discovery Market Analyst at Exterro

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With the increasing attention courts are paying to proportionality in e-discovery, courts will not justify overly broad discovery requests to search for relevant information. Without reasonable parameters, such “fishing expeditions” are likely to be turned down with potentially negative repercussions. Think twice before ever using the word “all” when requesting data, because in today’s cost-conscious courtrooms such requests will be rejected. In Tingle v. Hebert (M.D. LA, June 8, 2017), the defendant's overly broad request was just such an expedition.

Overview

In this employment case, the defendant filed a motion to compel the plaintiff to produce all texts and emails with any former or current employees who also worked for the defendant. This request included discovery of the plaintiff’s personal emails and text messages, along with deleted information from the plaintiff’s work cellphone.

The defendant contends the plaintiff was terminated from his job based on a racially offensive text sent from the plaintiff to a co-worker. The defendant argued that text message communications by the plaintiff to any co-workers should be produced based on their relevancy to the case.

The plaintiff rejected that the personal text messages are relevant to the case, because the plaintiff never used his personal cellphone or email address to conduct business.

Ruling

  • Discovery Request Limited.The court ruled that the defendant’s request was overly broad and not proportional to discovery, limiting the scope of discovery to a specific date range and to only conversations which “reference or discuss Hebert (defendant) or allegations of race discrimination.”
  • No Deleted Data. The court denied the request for deleted cellphone data for two reasons: (1) the plaintiff testified that deleted data from his work phone was not relevant and (2) the defendant offered no evidence that the plaintiff deleted relevant data.
  • No “Fishing Expeditions.” Based on the broad discovery request (i.e. all texts and emails)," the court would not allow a “fishing expedition for racially inflammatory emails or text messages that Hebert (defendant) believes may have been deleted from Plaintiff’s ATC-issued cellphone.”

Case Law Tip

For more information on crafting effective discovery requests, check out our visual guide on determining if your request is within the scope of discovery.