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What Constitutes Private Information in Text Messages

Created on April 1, 2020

Director of Marketing at Exterro

Laub v. Horbaczewski (C.D. Cal July 30, 2019)
serves as notice to custodians that even private information stored on your phone conducted in the course of business may be deemed responsive if produced.


In this contract case, the defendant inadvertently produced spreadsheets of text messages and iNotes from the defendant’s mobile phone without conducting a privilege review. Because of this, the defendant requested the production of spreadsheets to be returned and a new version with redactions would be submitted to the plaintiff.

The defendant reasoned that since the text message production contained irrelevant data, a clawback of irrelevant data was valid. The texts contained the following information between the defendant and…

  • Company employees
  • a college friend of the defendant
  • a human resource professional the defendant was having a romantic relationship with


    • The Court Declined the Defendant’s Request. The judge ruled that there was no legal justification to allow a clawback based on relevance. As a result, any substitute production must contact irrelevant texts.
    • Irrelevant Romantic Texts. The court ruled that there was a constitutional right to privacy when it comes to personal information. In these cases the court would conduct a balancing test between the need and the private information disclosed. Regarding the romantic texts the court stated, the “seriousness of the invasion of privacy for the individuals involved outweighs any countervailing interest there might be in discovery.”
    • Irrelevant Business Texts. The court however concluded that based on that same test, the texts between the defendant and his college friend were not precluded because the privacy concerns were not as high.
Mike Hamilton, J.D.

Expert Opinion from Mike Hamilton, J.D. Director of Marketing, Exterro

Throughout American culture there is a heightened awareness around how digital personal data is being used. This case points out that this trend applies to e-discovery, meaning the court will conduct a balancing test to evaluate the seriousness of the invasion of privacy versus the discovery interest/value when assessing production requests.

Case Law Tip:

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.