Text Message – Page 2 – Electronic Discovery Law

Balderas v. Ill. Cent. R.R. Co. (N.D. Ill. Jan. 8, 2021)

Jan 08 2021

Key Insight:

Further discovery must be based on more than mere speculation or suspicion that additional documents exist. The moving party must make a case showing “it can be reasonably deduced that other documents exist[.]”

The Court was unable to reach a ruling regarding Plaintiff’s requested search terms due to insufficient information. While Defendants did reject the terms and did not provide alternatives, plaintiff did not say what the requested terms were or why they were rejected.

With regards to specific discovery requests, Defendants were ordered to search for and produce responsive documents. The Court noted “boilerplate” objections without further explanation are equivalent to making no objection at all and individual authorization to access electronic communications is not required when the individuals are parties to the case. Additionally, emails and texts messages party’s employee are a compelling form of evidence that can be particularly significant in litigation.

Nature of Case: Civil Rights, Employment Discrimination

Electronic Data Involved: Personnel Records, Business Records, Electronic Communications, Email, Texts, Voicemails, Instant Messages, Electronic Documents Generally

Case Summary

Charter Communications Operating, LLC v. Optymze, LLC (Del. Ch. 2021)

Jan 04 2021

Key Insight: Defendant committed serious misconduct sufficient to justify dismissal of its counterclaims under Rule 41(b). Defendant refused the reasonable request for native files exchanged via Microsoft Teams. Defendant produced individual emails containing each message. In this format, the messages could not be reassembled into complete conversations. Defendant was compelled to produce the native files which revealed extensive spoliation of evidence. Defendant edited numerous chat messages in an effort to hide instructions to employees to take actions that violated court orders. Because all of the unaddressed misconduct related to Defendant’s counterclaims, dismissal of those counterclaims with prejudice and award of fees and expenses is an adequate remedy.

Nature of Case: Breach of Contract

Electronic Data Involved: Instant message

Case Summary

Jul 28 2020

Key Insight: Court rejected additional discovery based off proportionality and discovery already produced. There was no additional proof of unproduced, relevant texts.

Electronic Data Involved: Text Messages

Keywords: additional discovery, proportionality

Crossman v. Carrington Mortg. Servs., LLC, (M.D. Fla. May 4, 2020)

May 04 2020

Key Insight: Defendant moved to compel social media discovery from plaintiff. The court considered plaintiff’s objections based on relevancy, privacy, and vagueness. Plaintiff did not assert a proportionality argument. The court found that the discovery was relevant – “common sense dictates that information in [plaintiff’s] social medial . . . relates to her contemporaneous mental and emotional states and therefore relates to the injuries she claims she suffered at the hands of [defendant], including loss of enjoyment of life.” As to privacy, a confidentiality agreement suffices to protect plaintiff’s interests. As to vagueness, plaintiff’s counsel can “reasonably and naturally” interpret the requests in view of the claims and defenses through communication with opposing counsel. Lastly, an award of expenses was unwarranted since “reasonable minds can differ on the dispute.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Social Media

Case Summary

Nevis v. Rideout Memorial Hospital, et al. (Eastern District of California, 2020)

Feb 06 2020

Key Insight: Plaintiff was made aware that he had to preserve his phone records and text records and than failed to do so

Nature of Case: personal injury and liability

Electronic Data Involved: plaintiff’s cell phone and text messages

Keywords: spoliation, text messages, phone records, cell phone, preservation

View Case Opinion

Schmidt v. Shifflett, 1:18-cv-00663-KBM-LF (D.N.M. Aug. 6, 2019).

Oct 28 2019

Key Insight: Severe sanctions will not be granted where bad faith cannot be proved and no prejudice.

Nature of Case: Automobile collision.

Electronic Data Involved: Mobile phone data.

Keywords: intentional destruction, adverse inference

View Case Opinion

Wolff v. United Airlines, Inc., No. 1:18-cv-00591-RM-SKC (D. Colo. Sep. 17, 2019).

Sep 17 2019

Key Insight: Both sides moved for spoliation sanctions. Court was troubled by failure to suspend automatic deletion and loss of personal cell phone, but imposed no sanctions.

Nature of Case: Employee Termination/Discrimination

Electronic Data Involved: cell phones, company computer, notebooks

Keywords: spoliation; sanctions; automatic deletion

View Case Opinion

In re Verizon Wireless (D. Md., 2019)

Sep 16 2019

Key Insight: phone records for certain employee numbers overbroad

Nature of Case: discrimination and retaliation

Electronic Data Involved: text messages and phone records

Keywords: subpoena phone records

View Case Opinion

Shim-Larkin v. City of New York, 16-CV-6099 (S.D.N.Y. Sept. 16, 2019)

Sep 16 2019

Key Insight: The obligation to preserve evidence in a workplace discrimination suit can extend to personal devices known to contain relevant material.

Nature of Case: workplace discrimination

Electronic Data Involved: text messages

Keywords: personal device, text message, obligation to preserve

View Case Opinion

Laub v. Horbaczewski, No. 2:17-CV-06210 JAK (KSx) (C.D. Cal. July 30, 2019).

Jul 30 2019

Key Insight: Did not withhold irrelevant texts. Judge denied clawback for relevance.

Nature of Case: Contract

Electronic Data Involved: Text Messages

Keywords: clawback, relevance

View Case Opinion

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