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 January 12-18. Here’s what’s happening.
Plaintiffs Redact Texts, Defendants Don’t, What Happens?
On the eDiscovery Assistant blog, Kelly Twigger breaks down a decision in We the Protesters, Inc. v. Sinyangwe dealing with the redaction of text messages.
The magistrate judge in the case, Gary Stein, starts off his order with an ominous sentence (emphasis added): “Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery. Without having an express agreement in place to do so, Plaintiffs … redacted certain text messages from their document production. Defendants …, who produced their text messages in unredacted form, now move to compel Plaintiffs to do likewise.” It is important to note that the redactions in question were for relevance, not for claims of privilege.
Why was the ESI agreement in this matter not “clear and comprehensive?” As Judge Stein writes, the parties agreed that: (1) discovery in the case would encompass text messages; (2) agreed-upon search terms would be used to identify potentially responsive text messages; and (3) any time a search term hit on a text message, counsel would review all messages in the same chain sent or received the same day, regardless of whether the initial text message that hit on the search term was responsive and relevant. The agreement, Judge Stein writes, did not explicitly address whether, in producing those same-day text chains, texts deemed irrelevant and non-responsive would be redacted or, instead, the chains needed to be produced in their entirety.
As Judge Stein writes, “If Plaintiffs wanted to redact their text messages, it was incumbent upon them to negotiate an agreement to that effect with Defendants or, in the absence of an agreement, bring the issue to the Court for resolution before Defendants made their production.” He orders the Plaintiffs to produce unredacted versions of non-privileged text messages subject to limitations, including giving the parties permission to meet and confer with respect to affording special treatment to “Highly Sensitive Text Messages.”
The judge couldn’t have said it any better: When negotiating an ESI protocol, it’s imperative to consider all the potential sources of ESI and the ramifications of those sources. As Judge Stein points out in his order, text messages aren’t the same as emails, because chains of texts can go back years and contain all sorts of irrelevant information, even if some of the thread is deemed as relevant to the case at hand.
Court Rules Oakley’s Subpoenas Aren’t Proportional
Former NBA player Charles Oakley has been engaged in a years-long civil suit against the owners of the New York Knicks, his former team, and Madison Square Garden after he was forcibly ejected from the arena during a Knicks game in 2017. Recently a judge in the Southern District of New York ruled on several challenges to Oakley’s Rule 45 subpoenas in Oakley v. MSG Networks, Inc., refusing to quash them but also limiting their scope.
Oakley had asked for “all communications and ESI concerning Oakley and his removal from MSG, including e-mails, text messages, or instant messages in applications such as WhatsApp from February 8, 2017, to March 1, 2017,” served subpoenas on former employees seeking the same information, and moved to compel MSG to search for “text messages (or messages on other messaging applications) on the personal phones of [its] employees.”
The judge writes that Oakley carried his initial burden under Rule 45 to demonstrate that the information sought is relevant to the factual disputes in this case but has failed to show the requests were proportional to the needs of this case. While most of the subpoenas were limited to the day of Oakley’s ejection and the weeks following, four subpoenas served on former employees did not contain any time limitation. Courts have regularly held that subpoenas seeking all documents or all communications on a given issue are overbroad, impermissible, and presumptively improper. Therefore, the Court limited the scope of Oakley’s Rule 45 subpoenas to personal communications, including personal emails, text messages, and messages on other applications, from February 8, 2017 to March 1, 2017 regarding the sole topic of Oakley’s removal from MSG. Without those limitations, the broad subjects listed in the subpoenas in addition to the unlimited date range are more than likely to bring in an abundance of irrelevant information.
Other recent eDiscovery news and headlines:
- 5 E-Discovery Predictions For 2025 And Beyond (Law360, subscription required)
- Expert on AI Submits Court Declaration with Fake AI Citations: Cybersecurity Trends (eDiscovery Today)
- It is Important to Understand an E-Discovery Vendor’s Contract (EDRM Blog)
Julia Helmer; Director, Client Solutions
With 15 years of expertise, Julia excels at optimizing enterprise eDiscovery workflows from start to finish. With a deep understanding of how to seamlessly integrate workflows across various eDiscovery platforms, Julia creates tailored solutions for data identification, legal holds, ESI collections, and productions. By harnessing the power of Technology Assisted Review and Analytics, she delivers efficient, cost-effective results that align with best practices and budgetary constraints. Julia’s exceptional communication and customer service skills have fostered strong, lasting relationships with both clients and Project Management teams, enabling her to effectively problem-solve and drive success across numerous projects.
