Text message productions: Chart a viable path | eDiscovery Update

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Text messages have been with us for some time, yet the courts and legal profession continue to grapple with how they should be produced in litigation. The lack of universally accepted standards might seem like a trap. But with some general principles as your guide, you should be able to chart a viable path through the text message jungle.

Why all the fuss about text productions? Compared to traditional email threads, conversing by texts tends to be more fluid. Texts are stored in a way that groups all messages between the sending and receiving parties together in a continuous series of individual, potentially unrelated, text messages.  Usually, as long as the parties on the text chain remain the same, your phone will group the entire history of texts between those parties into one “conversation.” This differs from emails where the same sender and recipients can easily initiate new, discrete email chains about specific subjects. Once established, a single text conversation can span months or even years, weaving in and out of many topics, much of which may be irrelevant and personal. Therefore, producing all of the individual text messages that comprise a lengthy text conversation can be problematic.

However, producing only some of the text messages from a text message conversation and withholding the rest can also be problematic. First, the jurisdiction in which your case is located may prohibit or disfavor it, construing the production of a partial text conversation as withholding portions of a relevant document without legal justification. Second, it can be hard to figure out how much is enough when producing less than the entire text conversation. Taking a narrow approach by running search terms across the conversation and producing only those individual text messages that hit on a term often isn’t a great solution. That’s because the individual text messages within a text conversation are kind of like the individual frames of a film: without the context of what came before and after, producing a single text message in isolation often won’t tell the full story.

Between the extremes of producing only those individual, relevant text messages within a text conversation that hit on a search term, and producing every text message within a text conversation regardless of relevance, there can be a “middle-ground” to explore. Absent local rules, caselaw or other authority to the contrary, there is no one-size-fits-all approach: variables such as your strategic objectives, the parties’ respective litigation postures, “proportionality” factors pursuant to Federal Rule of Civil Procedure 26, and privacy considerations, to name a few, are factors in determining a course of action.

Entering into a formal agreement with your opponent on the rules for producing text messages can give you flexibility to arrive at a mutually acceptable middle ground. An agreement should also help shield you from the default rules in the jurisdiction. For this reason, you may find an agreement especially helpful if your jurisdiction’s default rules disproportionately burden your client.

However, entering into an agreement with your opponent may not always be feasible or fit your case strategy. If you strike out unilaterally, it’s wise to understand approaches that are more likely to hold up in court, in the event of a discovery dispute. Should you lose in court, among other consequences, you may be ordered to redo your text message productions, which could be costly.

A fairly recent decision out of the U.S. District Court of Minnesota (Mgmt. Registry v. A.W. Companies, No. 0:17-cv-5009-JRT-KMM, 2020 WL 468846 (D. Minn. Jan. 29, 2020)) illustrates a “middle ground” approach to producing text messages. In Mgmt. Registry, defendant initially produced only the individual text messages from a text conversation that hit on search terms and redacted all other text messages from the conversation on relevance grounds. After plaintiff pushed back, defendant offered to produce an additional 10 text messages on either side of the individual text messages it had produced.

Noting that relevance redactions are “fraught with the potential for abuse” and generally not permitted, but also that “the realities of communicating by text message may justify other solutions,” the Mgmt. Registry court gave defendant the option to either: (1) make a complete, unredacted, production of text messages; or, as defendant had offered, (2) make a production of 10 unredacted text messages on either side of the individual text messages defendant had produced, implying plaintiff’s right to seek further court intervention if it received and was unhappy with a partial production.

As shown in Mgmt. Registry, middle-ground approaches to text message productions can involve dividing up the text message conversation into bite sized chunks. The Mgmt. Registry court endorsed, if somewhat tepidly, a “numerical” method, allowing defendant to produce 10 unredacted text messages before and after the individual text messages it had initially produced, as an alternative to producing the entire text conversation. A “temporal” method can be another way to divide up a text conversation, for instance, producing all of the text messages sent or received within a certain time period of a relevant text message. In either a “numerical” or “temporal” method, the producing party might consider retaining the right to redact any nonrelevant text messages in proximity to the relevant text message. Yet another middle-ground approach is simply to review your text message data without employing any “numerical” or “temporal” cutoff and produce the portions you determine are responsive, being mindful that overzealous redactions could invite a discovery dispute.

The unsettled body of law around text message productions may be … well, unsettling. But it may also provide room for creative solutions. Agreeing with your opponent on the rules for producing text messages can help shield you from the jurisdiction’s default rules. If you do elect to go forward unilaterally, be sure to research the rules and case law of your jurisdiction and consider an approach that will likely hold up in court in the event of a discovery dispute.

Lawrence Bice is Senior Counsel and Director of Litigation Services for Larimer Law. Jason Zirbel is Discovery Counsel and Project Manager for Larimer Law.