Text Messaging and Other Real-Time Electronic Communications – Page 2

Laub v. Horbaczewski (C.D. Cal. 2020)

Nov 17 2020

Key Insight: Plaintiffs sought Slack messages and defendants claimed they did not have access to the messages because of its level of Slack plan. The court instructed plaintiffs to pursue the Slack messages through a third party subpoena and defendants objected to the overbroad scope of the subpoena. The court concluded plaintiffs “credibly argued” that the Slack messages “may be relevant to the issues involved in this case,” but found that the request was not proportional to the needs of the case under the second prong of Rule 26(b)(1) because: (1) The defendants did not have access to the messages and requiring them to produce the messages would impose an undue burden and expense, and (2) the messages would likely be cumulative because the record was “replete with evidence of Plaintiffs’ involvement” and plaintiffs “offer no evidence that the private messages contain any novel or noteworthy information that warrant compelling their production.”

Nature of Case: Breach of contract

Electronic Data Involved: Instant messages

Case Summary

In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)

Key Insight: In their discovery requests, Defendants sought data concerning the Plaintiff’s use of social media and text messages concerning matters relevant to the litigation. After Plaintiff provided responses to these discovery requests, Defendants filed a Motion to Compel Plaintiff to submit to a forensic examination of his mobile phone. Defendants based their Motion on the arguments of ensuring complete collection of data from the mobile phone, and more specifically, complete data of Plaintiff’s use of social media messaging and text messaging with several parties on said mobile phone.

The Court denied Defendants’ Motion because it found that the electronic stored information (ESI) already produced was complete and/or sufficient due to the Plaintiff already working with an ESI expert to obtain the requested data, particularly from the mobile device. In short, the Defendants’ lacked a sufficient reason to believe that the data already produced was not complete.

Similarly, the Defendants failed to demonstrate that a forensic examination of the mobile device would produce relevant data showing that Plaintiff had a pattern or practice of deleting the above mentioned messages. Moreover, the data produced by the examination would only show that a message was deleted, not when or why the message(s) were deleted, the contents of the message(s), or a pattern of deleting messages. In sum, the Court found that the requested forensic examination would be “disproportionate to the slight importance” it would provide to the litigation.

Nature of Case: Product Liability

Electronic Data Involved: Cellular Phone, Text Messages, Social Media, Social Media Messages,

Case Summary

Gross v. Chapman (N.D. Ill. July 28, 2020)

Jul 28 2020

Key Insight: Bride and groom called off their wedding after a dispute arose over whether it should be an “adults only” affair. The bride’s parents sued the groom’s parents claiming they were out over $100,000 in wedding costs. After defendants produced 5,000 text messages, the court declined to grant further discovery into the process surrounding how the text messages were collected. A large volume of ESI had already been produced at significant expense to defendants and plaintiff’s motion to compel was based on speculation— “discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts” and was substantially out of proportion to the needs of the case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Text Messages

Case Summary

Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Feb 17 2020

Key Insight: The court denied Plaintiffs’ requests for additional text message discovery or the forensic imaging of cell phone data. The court emphasized the privacy implications of producing broad cell phone data, which often contain “the most intimate of persona details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

The court recognized “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court directed the parties to work together to come to an agreement regarding the scope of a “carefully tailored, relevant search for such data.” Only if the parties cannot reach an agreement, would the court intercede.

Nature of Case: Fair Labor Standards Act, Employment Law

Electronic Data Involved: Text Messages, Cell Phone Data

Case Summary

Tag:Text Messaging and Other Real-Time Electronic Communications