April 30, 2020 Practice Points

Making an Effective Argument Against the Collection of Text-Message Evidence

Five questions for structuring the analysis.

By Saran Q. Edwards

Cell phones are far more than tools used to make calls: They are also pseudo-banks and diaries, (amongst other things) that envelop every facet of our lives. Text messaging (and other electronically stored information, or ESI), while convenient, creates a trail of breadcrumbs that reveals our most intimate affairs. It is no wonder that they have become common subjects of discovery requests, and courts have recognized that the omnipresent nature of cell phones and the data stored within, bring forth significant privacy concerns. Considering the privacy considerations and the usual constraints on discovery under Fed. R. Civ. P. 26, one should remember the following: When faced with a request for onerous text-message collection, “ask and ye shall receive” does not necessarily apply, and a successful argument against the request may exist.

Conjecture or Relevance?

The court in Lawson v. Love's Travel Stops & Country Stores, Inc., 1:17-CV-1266, 2020 WL 94078, at *1 (M.D. Pa. Jan. 8, 2020), provided a blueprint for arguing against discovery requests seeking text messages. In Lawson, a Fair Labor Standards Act (FLSA) collective action, 400 current and former operations managers alleged they were misclassified as exempt managerial employees under the FLSA and were consequently deprived of overtime pay as required by federal law. The parties engaged in numerous and reciprocal discovery disputes, culminating in the plaintiffs’ request for all text messages contained in the business cell phones of Love’s supervisors (nearly 100 employees). The court subsequently denied the plaintiffs’ request without prejudice, noting that it might grant a relevant, more narrowly tailored request.

As shown in Love’s, if a party receives a blanket request for text-message collection, without the requisite proffer of relevance and an adequate description of the information likely to be discovered, a viable relevancy argument exists. Additionally, one should remember that a requesting party is never entitled to all text messages contained in a cell phone: Only those considered relevant to the litigation are subject to discovery and subsequent disclosure.

Beyond the Scope?

When confronted with a request for text messages related to individuals with tenuous or non-existent significance to the case, it is prudent to question the request’s scope and proportionality. The defendant in Love’s succeeded on such an argument, when it demonstrated that, as the supervisors had no occasion to communicate about the daily goings-on of operations managers via text (or otherwise), they were unlikely to possess information relating to the litigation.

Is the Price Right?

Courts routinely consider costs when determining the scope of discovery proceedings. Hence, a party may be able to assert that the potential price tag of rendering the text message collection is too high under the circumstances. For example, the Love’s court found itself unable to justify the costs of collecting, retaining, and producing the text messages contained in over 100 cell phones of individuals unlikely to possess any discoverable evidence. Of course, when making this argument, a party should consider the totality of the circumstances, including, but not limited to: the significance of the litigation, relative economic position of the parties involved, and the existence of other objections.

Too Much to Bear?

Establishing the collection and production of the requested text messages as unduly burdensome can go a long way in support of a successful bid against the propriety of the request, as courts will not permit a request that it considers to be unduly burdensome. This is especially true when the request is also vague and lacking any semblance of relevance.

Too Intrusive?

As previously mentioned, the pervasiveness of cell phones raises additional privacy concerns, especially because sensitive information stored therein may be entirely irrelevant to the subject of the litigation. Consequently, courts are hesitant to compel intrusive forensic examinations of cell phones unless the moving party has laid a proper foundation establishing the proportionality factors under Fed. R. Civ. P. 26(b)(1). Therefore, when disputing a wholesale and far-reaching request for text-message collection, privacy implications should be at the argument’s forefront.

Takeaway

While the prevalence of cellphones may have ushered in a new “frontier” of discovery, an effective argument against text-message collection can be made by asserting the traditional discovery defenses and the novel, yet pertinent, privacy concerns implicit in the use of the mobile devices.

Saran Q. Edwards is an attorney with John Rue & Associates, LLC in Lake Hopatcong, New Jersey.


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