Anticipation of Litigation Advisor
A Follow Up to 2018 Blog on "Are an Employee's Text Messages Discoverable?"
May 6, 2022
By: Matthew R. Miller and Dale H. Harrison
In the years since this blog post was initially posted in September 2018, corporate Bring Your Own Device (BYOD) policies have become more prevalent, and the explosion of remote work has necessitated the increased use personal devices for business purposes. Because of the increasing relevance of the topic in today’s new remote business environment, we have updated our September 2018 blog with more recent case law on the topic. The original blog posted September 26, 2018 can be found at the following link:
Since later 2018, courts have generally continued to find that text messages on company-owned phones and text messages on personally-owned phones which relate to business matters are discoverable in litigation. See, e.g. Schnatter v. Papa John's Int'l, Inc., No. CV 2018-0542-AGB, 2019 WL 194634, at *16 (Del. Ch. Jan. 15, 2019), abrogated on other grounds by Tiger v. Boast Apparel, Inc., 214 A.3d 933 (Del. 2019) (explaining that where employees or directors of a company “used personal accounts and devices to communicate about [company business], they should expect to provide that information to the Company.”).
But, as described in the original post, the question is fact-intensive, and courts do not always find even business-related text messages on personal cell phones to be discoverable. In In re Sun Coast Res., Inc., 562 S.W.3d 138 (Tex. App. 2018) the Fourteenth District Court of Appeals of Texas addressed whether a trial court erred when it ordered the defendant company to “produce text messages from the personal cell phones or mobile devices owned by its employees,” which contained work-related messages and the company had a BYOD policy which included a policy to partially reimburse employees their cell phone bills. The Sun Coast court found the trial court did err in requiring these messages to be turned over. In so holding, it found that these cellular phones – and the messages contained on them – are personal property and therefore are entitled to “enjoy the full panoply of ‘fundamental’ property rights,” which include “the right to possess, use, or transfer the property, and to exclude others.” Id. at 157. Interestingly, the Sun Coast Court even turns to and relies upon Blackstone’s 18th century Commentaries in reaching this decision on modern technology, noting the long-standing common law principle that a “property owner's right to exclude others from his or her property is recognized as ‘one of the most essential sticks in the bundle of rights that are commonly characterized as property.’” Id.
Of note, even with respect to company-owned cell phones, discovery should only be had of text messages which are relevant to the case. See Lawson v. Love's Travel Stops & Country Stores, Inc., No. 1:17-CV-1266, 2020 WL 109654, at *1 (M.D. Pa. Jan. 9, 2020) (in response to a plaintiff’s request for “all text messages from company owned phones” the court ruled that “no party would be entitled to all text messages contained on an opposing party’s cellphones. Only those messages that were relevant to the issues in this litigation would be subject to discovery and disclosure.”). Additionally, courts continue to find failure to takes reasonable steps to preserve responsive text messages to be sanctionable. See, e.g. Paisley Park Enterprises, Inc. v. Boxill, 330 F.R.D. 226 (D. Minn. 2019) (ordering the payments of costs and a fine of $10,000 for failing to preserve text messages); see also Matter of In re Skanska USA Civ. Se. Inc., 340 F.R.D. 180 (N.D. Fla. 2021) (ordering a party which failed to preserve electronically stored information, including text messages, to pay opponent’s costs and fees).
Nevertheless, it is important for counsel to carefully review every text message to be produced before providing them to opposing counsel. In Laub v. Horbaczewski, the United States District Court for the Central District of California weighed in on the ability of a party to claw back inadvertently disclosed text messages based on irrelevance and personal sensitivity. 331 F.R.D. 516 (C.D. Cal. 2019). In Laub, the defendant had produced a spreadsheet of text messages from its CEO’s phone, some of which it subsequently sought to claw back based on claims that some of the messages were irrelevant private information and that others were simply irrelevant. Laub, 331 F.R.D. at 521-526. After an in camera review, the Laub Court determined that some of the messages were, in fact, so intimate that they did not have to be reproduced after the plaintiff had complied with an order to destroy the initial production. Id. at 524. Nonetheless, because of the inadvertent disclosure, some claims of privacy were waived and thus some of the allegedly private text messages that were not too sensitive had to be reproduced. Id. The messages which were alleged to be irrelevant but not overly sensitive were required to be reproduced, however, because the Laub Court found “nothing in the Federal Rules of Civil Procedure, this district's Local Rules, or caselaw permits a party to withdraw documents already produced based on a unilateral assertion of irrelevance.” Laub, 331 F.R.D. at 526.
As a final important note in Laub, the defendants there also asked to court to allow them to claw back the spreadsheet in its entirety so that they could produce each message as a separate document because the spreadsheet had only been produced for ease of review by defense counsel and had not been intended for production. Id. The court noted that the parties could have conferred to agree on the proper format of the e-discovery, but since the defendants produced the spreadsheet without conferring with the plaintiffs, they were then required to reproduce the spreadsheet unless the parties mutually agreed to a different format. Id. at 528. This should serve as a reminder of the importance of agreeing upon the types of messages and the desired format for production of those messages prior to production of the data. It is likely important to clarify what sorts of messages are being sought, given the proliferation of messaging apps, as well as what types of media often sent via messaging app is to be included in discovery. If such advice is followed, the party producing text messages can be sure not to produce more or less information than is required by engaging in a thorough meet and confer process. Likewise, the party seeking to obtain text messages can be sure that it is receiving the messages in a format which preserves potentially important features of messages such as emojis or various types of media.
As noted previously, putting in place a well-thought-out policy regarding employee use of personal devices for business purposes ahead of time can be critical when litigation later arises, and the company is presented with discovery requests related to employee text messages.