What Constitutes Private Information in Text Messages

Laub v. Horbaczewski (C.D. Cal. July 30, 2019) serves as a reminder to custodians that even private information stored on personal devices may be considered responsive in discovery if it is produced.

Overview

In this contract dispute, the defendant inadvertently produced spreadsheets containing text messages and iNotes from a mobile phone without conducting a privilege review. The defendant later requested that the materials be returned and replaced with a redacted version.

The defendant argued that a clawback was justified because the production included irrelevant data. The messages included communications with:

• Company employees
• A college friend
• A human resources professional with whom the defendant had a romantic relationship

Ruling

• The Court Declined the Defendant’s Request.
  The court found no legal basis to allow a clawback solely on the grounds of relevance. As a result, any replacement production could not exclude irrelevant messages.
• Irrelevant Romantic Texts.
  The court recognized a constitutional right to privacy for personal communications. Applying a balancing test, it determined that the invasion of privacy outweighed any discovery value. Therefore, the romantic messages were protected.
• Irrelevant Business Texts.
  In contrast, the court found that messages with the defendant’s college friend did not raise the same level of privacy concern and were therefore not protected from disclosure.

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

There is growing awareness around how personal digital data is used, and this extends into e-discovery. This case highlights that courts will apply a balancing test—weighing the seriousness of privacy invasion against the value of the information in discovery—when determining whether data should be produced.

Case Law Tip

Review FRCP guidelines to better understand the rules and requirements governing e-discovery practices.

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