With a continued focus on requesting text messages in discovery, courts are asking parties to narrowly define their requests.
In this Fair Labor Standards Act case, the plaintiffs requested that the defendant produce text messages from company issued cell phones assigned to the defendant’s supervisors. The defendant opposes for two reasons: (1) Plaintiffs made an untimely request for this data and (2) The request was not relevant or proportional to the case. This fight between the parties was one out of a long line of discovery disputes. The court thought it resolved these disputes around text messages by ruling that text messages would only be produced from a certain type of custodian and no forensic review was necessary. But at the end of the discovery phase, the plaintiffs requested additional text messages, which the defendant felt was… • Too costly (estimated $27k - $150k) • Too broad (over 100 cell phones) and • Not relevant (supervisors are higher “several rungs” above the custodians who are relevant to the case). Based on these factors, the defendant “contend that this discovery demand does not satisfy the proportionality principles embodied in Rule 26.”
• Alternative Remedy by the Court. While declining the plaintiffs request for additional text message discovery, the court recognized “that a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court ruled that the plaintiffs should modify their request.
• Focus on Cooperation and Resolving this Dispute Without the Court. The court instructed the parties to work together to identify a relevant and proportional scope for the request stating, “The parties should then consult, confer, and attempt to agree upon the scope of any carefully tailored, relevant search for such data.” If terms can’t be agreed upon then the parties may involve the court.
• Balancing of Private Information Included in Request. Courts are emphasizing and aware of the privacy implications of producing broad social media and text message when ruling on these requests stating, “we must be mindful of the fact that social media is at once both ubiquitous and often intensely personal, with persons sharing through social media, and storing on electronic media, the most intimate of personal details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”
Download the PDF version of Lawson v. Love’s Travel Stops & Country Stores, Inc. case law alert here.
"While it is clear that relevant (and proportional) texts are discoverable, the document request should specifically make clear when texts are being sought. The defense did the right thing in not just saying the request would be costly, but actually providing specific cost information to the Court. Finally, the Court’s reference to social media seems out of place when the issue is texts, but that is because plaintiffs were seeking a forensic image of the phones in order to capture the texts."