Every week, the Array team reviews the latest news and analysis about the evolving field of eDiscovery to bring you the topics and trends you need to know. This week’s post covers the period of May 4-10. Here’s what’s happening.
On the EDRM Blog, Michael Berman writes about a discovery dispute regarding redaction of text messages in We the Protestors, Inc. v. Sinyangwe. The parties had agreed to collect and review all text messages in the same chain on the same day whenever there was a text message within the chain that hit on agreed-upon search terms. However, the defendants made an objection, claiming the plaintiffs unilaterally redacted text messages within a same-day text chain.
The court’s analysis started by addressing that text messages, while an increasingly common source of relevant and often critical evidence in modern litigation, do not fit neatly into document discovery rules. The court went on to say that while email retains a resemblance to conventional documents in that each email, or email chain, can be viewed as a single, identifiable “document,” text messages do not lend themselves as easily to the same concept.
Next, the court asked a series of questions:
- Should each text message be viewed as its own stand-alone “document” or item of ESI?
- Is the relevant “document” the entire chain of text messages between the custodian and the other individual or individuals on the chain—which could include hundreds or thousands of messages going back for years?
- Should the producing party be allowed to redact non-responsive texts and, if so, to what extent?
The answer to these questions, the court suggested, could be attained through negotiations between the two parties: “Litigants are free to—and are well-advised to—mitigate the risk of this uncertain legal regime by coming to their own agreement about how to address text messages in discovery. Rule 29(b) specifically affords parties the flexibility to design their own, mutually agreed upon protocols for handling discovery.”
The court went on to say: “In the context of text messages, an agreed-upon protocol is particularly sensible where, as here, both sides are seeking and will be producing such information. A party may think twice about insisting on the most burdensome and costly method of reviewing and producing text messages for its adversary if it knows it will be subject to the same burden and cost. Similarly, when it comes to redactions, while a party may be happy to receive unredacted messages from the other side, it may forgo that potential benefit if that allows it to redact information from its own production. In general, the parties are better positioned than the court to customize a discovery protocol that suits the needs of the case given their greater familiarity with the facts, the likely significance of text message evidence, and the anticipated volume and costs of the discovery.” (emphasis added)
Although the parties reached an agreement to review all texts in the same chain sent or received on the same day as any text that hits on any of the search terms, this agreement did not explicitly address whether, in producing those same-day text chains, texts deemed irrelevant and non-responsive could be redacted or if the chains needed to be produced in their entirety.
The court wrote that it was resolving a dispute based on the parties’ agreement and not seeking the “right answer” to the redaction question: “The Court’s task on this motion is thus more akin to filling a gap in the parties’ incomplete agreement.”
Here’s how the court filled in that gap: the court ruled that a party cannot unilaterally redact parts of a text message chain if there’s no explicit agreement on redactions, meaning the entire text message chain must be produced.
Because of the proliferation of text messaging as a modern form of communication that can be central to litigation, it’s important to consider specific wording in your ESI protocols and agreements to anticipate disputes on the definition of “what is a document” as well as policies for redactions of such documents.
Other recent eDiscovery news and headlines:
[View source.]
