January 17, 2025 • 27 mins
Unlock the secrets of mastering electronic discovery with Kelly Twigger as we navigate the complex landscape of handling text messages in litigation. How do you handle non-responsive information in ESI without stepping on legal landmines? Join us as we dissect Magistrate Judge Gary Stein's pivotal ruling in "We the Protesters Inc vs. Sing Yong Wei," a case that underscores the crucial need for written agreements on redacting text messages. With mobile device data playing an increasingly significant role in legal disputes, these insights are indispensable for legal professionals aiming to stay ahead in their game.
Get ready to transform your approach to eDiscovery with the latest case law updates and strategies to enhance your legal tactics. We bring you actionable insights from recent decisions, drawing essential parallels with landmark cases to help you leverage ESI more effectively. This episode is your guide to excelling in managing electronic discovery processes, ensuring you're equipped with the knowledge to negotiate and request ESI with precision. Subscribe, listen, and empower yourself with the expertise to navigate the ever-evolving world of eDiscovery.
Links mentioned in this episode:
University of Florida eDiscovery Conference
How to help those affected by the California fires:
Cases Mentioned:
We the Protesters, Inc. v. Sinyangwe
Hunter’s Capital, LLC v. City of Seattle
Maziar v. City of Atlanta
Safelite Grp., Inc. v. Lockridge
Lubrizol Corp. v. IBM Corp.
Al Thani v. Hanke
In re Actos Antitrust Litig.
Read the blog about this case- eDiscovery Assistant Blog
eDiscovery Assistant Website
Sign up for Kelly's Case of the Week Newsletter here
eDiscovery Assistant Free 7 day Trial (no credit card required)
Thank you for tuning in to Case of the Week with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on ediscovery, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy. Join us next episode as we break down another important case shaping the future of ediscovery.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:14):
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:35):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and e-discovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:58):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in eDiscovery case
law and how it shapes both yourlitigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
(01:19):
Subscribe or follow now tostart embracing the power of ESI
as evidence.
Hi and welcome to our Case ofthe Week segment on our podcast.
My name is Kelly Twigger.
I'm the principal at ESIAttorneys, a law firm for
(01:42):
e-discovery and information law,and the CEO and founder at
e-discovery assistant, where wetake the insights from our
practice and provide a knowledgeplatform for you to leverage
the power of ESI.
Thanks so much for joining metoday.
Before we get started, I wantedto take a minute and
acknowledge the absolutedevastation that is happening in
the Los Angeles area.
(02:03):
We are no stranger to forestfires here in Colorado and my
heart goes out to all of thosewho have lost their homes and
loved ones, and also to thoseliving in the area who are
battling the conditions thatsuch fires create.
Please consider donating if youcan to help folks rebuild their
homes and their lives.
We'll add some links to the RedCross and other organizations
(02:25):
in the show notes and in thecomments as well, and thank you
in advance for your generosity.
One quick announcement about theupcoming University of Florida
eDiscovery conference, to beheld virtually and in person on
February 12th through 13th 2025.
So coming up in just a month,this is 16 plus CLE hours of
(02:46):
practical education thatincludes ethics, technology from
the best in the business ineDiscovery, and it is free to
attend virtually.
Please mark your calendars andget registered.
We'll include that link both inthe show notes and in the
comments.
I've had the pleasure ofparticipating on the planning
committee for the UFE DiscoveryConference for the last 11 years
(03:07):
and we worked, starting in May,to put together an amazing
program about the current issuesfacing us in electronic
discovery.
You can view the full agenda atufediscoveryconferencecom and,
as I mentioned, we'll drop alink to register All right.
Now back to our show.
Our goal here on the Case ofthe Week segment is to identify
(03:28):
practice points for you inplanning for, negotiating and
requesting ESI and discovery.
By reviewing recent decisionsfrom the courts, our goal is to
help you issue spot, torecognize the issues that you
need to focus on in eDiscoverybefore you need them and to help
you identify the right languageto use when you need it.
(03:50):
This week's decision isparticularly important because
it addresses the age-oldquestion of that we had with
paper and now we have with everyindividual source of ESI Can a
producing party redactnon-responsive information
before producing it?
Today's decision deals withthat messy issue of redaction in
(04:12):
text messages, and it's a keyone because such a high
percentage of cases now involvedata from mobile devices and,
specifically, text messages.
What's also key that we'll seehere from Judge Magistrate
Stein's ruling is that, eventhough how people communicate
via text is radically differentfrom how they communicate in
email, generally, parties cannotredact for non-responsiveness
(04:35):
unless the parties agree to itin writing.
Now let's dive into this week'svery well-written and thoughtful
decision from Magistrate JudgeGary Stein.
This one comes to us from thematter titled we the Protesters
Inc vs Sing Yong Wei.
This decision is from December18th 2024, so just under a month
(04:56):
ago and will be included in ourcase law report for 2024 that
will be distributed at theUniversity of Florida eDiscovery
conference.
You'll also be able to accessthat report if you're signed up
for our newsletter.
And if you're not signed up forthe newsletter, you can do that
at ediscoveryassistantcombackslash blog.
So signing up for the blog willalso sign you up for our weekly
(05:19):
newsletter.
Today's decision can be viewedvia the link in the show notes
or in the comments.
It always drives me crazy whenan article or podcast references
a case and then cites thedocket number which you can
never find because the text ofthat decision sits behind a
firewall.
So at eDiscovery Assistant, wedecided to make every case in
(05:39):
our curated database availableat a public link for you to
review.
We want you to read thedecisions and learn how to do
eDiscovery better and moreeffectively for your clients, so
check out the link.
This is a shorter decision, butdefinitely worth a read.
Magistrate Judge Stein has ninedecisions in our eDiscovery
Assistant database.
(06:00):
As always, we've tagged each ofthe decisions, including this
one, with our proprietary issuetagging structure in eDiscovery
Assistant, which allows ourusers to find decisions without
relying on complicated searchstrings.
This week's issues includefailure to produce ESI protocol
redaction, cooperation ofcounsel, text messages and email
(06:21):
threading.
All right, what are the factsof this case?
Well, the facts are prettyshort, so we're going to combine
our facts and analysisdiscussion today, and so these
are really simple.
Basically, the parties agreedto produce text messages in
discovery, that they would usesearch terms to identify
responsive texts and that allmessages in the same chain on
(06:44):
the same day as a responsivesearch term appeared, would be
produced quote regardless ofwhether the initial text message
that hit on the search term wasresponsive and relevant.
Close quote.
Now, that last piece,regardless of relevance, is a
bit of foreshadowing for youliterary buffs out there like me
(07:04):
.
Ok, With that agreement inplace, the plaintiffs produced
thousands of text messagestrings, many of which were
redacted for relevance.
Defendants produced hundreds oftext message strings and did
not redact them for relevance.
Defendants then objected toplaintiffs' production, arguing
that the plaintiffs were notentitled to redact for relevance
(07:25):
, and this motion to compelensued.
Now what I love here is JudgeStein's opening quotes right at
the top of this decision.
Quote before the court is adiscovery dispute that
underscores the importance ofcounsel fashioning clear and
comprehensive agreements whennavigating the perils and
pitfalls of electronic discovery.
(07:47):
Close quote I mean this is atheme that we've seen here and
which amplifies our message thatI routinely have for my clients
and I talk about through theeDiscovery Assistant platform as
well as here on Case of theWeek, and it's one that every
litigator needs to understand.
Ediscovery is hard.
It's a constantly moving target.
(08:07):
Every time the technology weuse to create, store, send and
receive ESI changes.
It's one that you need tofigure out for your matters and
for the sources of ESI that areinvolved in the cases you're
handling.
Every single source of ESI hasto be considered and handled
(08:28):
differently.
Now, what do I mean by a sourceof ESI?
Because I use that language allthe time.
Recently, one of my listenersreached out and said hey, it'd
be great if you could explainsome of these terms that you use
.
So we'll try to start doingmore of that.
A source of ESI means the datathat is created by an
application that is discoverable.
So the sources of ESI that wedeal with routinely include
(08:50):
email databases, text messages,each individual social media
platform, slack Teams and somany others.
I mean we can go on and on andon.
The list is very exponential.
You know Google Mail, yahooMail, any sort of web-based mail
.
Every single platform can haveone or more data or file types
(09:12):
that come from it, differentmetadata fields that need to be
provided and a form that needsto be readable by the receiving
party.
It's complicated and hard tostay on top of.
Magistrate Judge Stein'sdecision in this intellectual
property dispute that we'retalking about today does a great
job of analyzing the case lawon one specific source of ESI
(09:36):
text messages.
It's clear, with as much timeas I spend reading the case law
each year, the text messageshave emerged much more
prominently over the last twoyears as a very critical source
of ESI.
If you'll recall from listeningto previous episodes, the court
in the Hunter's Capital casefound a conspiracy to destroy
(09:56):
text messages that wassufficient for dispositive
sanctions In Mazier v City ofAtlanta, which was a 2024 case.
The failure to preserve textmessages led to the denial of
summary judgment and significantcosts imposed against the city
for a failure to preserve threetext messages.
In Safe Light versus Lockridge,which is a really recent
(10:17):
episode.
Here on Case of the Week, thedefendant's failure to preserve
text messages led to prejudiceand to an adverse inference
instruction.
Text messages are key evidencenow and they are how individuals
communicate in our world wherewe expect every communication to
be responded to immediately.
Magistrate Judge Stein'sdecision here includes an
(10:41):
excellent discussion on thechallenges of dealing with text
messages.
Quote text messages are anincreasingly common source of
relevant and often criticalevidence in 21st century
litigation.
They do not, however, fitneatly into the paradigms for
document discovery embodied byRule 34 of the Federal Rules of
(11:02):
Civil Procedure, which wascrafted with different modes of
communication in mind.
Although Rule 34 was updated in2006 to acknowledge expressly
the existence of electronicallystored information, or ESI, as
distinct from hard copydocuments, the dominant form of
ESI at the time by far was email.
(11:25):
Email at least retains aresemblance to conventional
documents in that each email oremail chain can be viewed as a
single identifiable documentWith text messages.
That is not so clear Fordiscovery purposes.
Should each text message beviewed as its own standalone
document or item of ESI, or isthe relevant document the entire
(11:47):
chain of text messages betweenthe custodian and the other
individual or individuals on thechain, which could embrace
hundreds or thousands ofmessages going back for years?
Should the producing party beallowed to redact non-responsive
texts and, if so, to whatextent?
Litigants and courts are stillin the process of figuring out
how to answer these questions.
(12:08):
Close quote the court thenturned to looking at the
existing law on redacting textmessages, specifically the
Lubrizol case, which we coveredon an earlier episode of Case of
the Week.
That case involved theredaction of slacked messages
considered akin to text messagesby the judge there, and the
court in Lubrizol ultimatelyrelied on the party's agreement
(12:30):
to produce 10 messages beforeand after the words that hit on
search terms, but referencingthe approach taken in the
leading case on this issue inthe district in the Southern
District of New York where thiscase was taking place.
That case is called Alfaniversus Hankey from 2022.
Hanky from 2022.
(12:55):
Magistrate Judge Stein notedthat some courts have suggested
that a party must produce theentirety of a text message
conversation that contains atleast some responsive messages.
And he notes that in Al Thani,judge Cronin applied, in the
context of text messages, thegeneral rule restricting a
producing party from redactingunrelated, non-privileged
information from an otherwiseresponsive document, precluding
(13:20):
redaction for non-responsivematerial.
Finding no reason to go againstthe weight of authority in this
district, which holds thatparties may not unilaterally
redact otherwise discoverabledocuments for reasons other than
privilege, the Althani courtordered the defendant there to
produce the unredacted textmessages between herself and
(13:41):
another defendant in theirentirety.
But what Judge Magistrate JudgeStein says next is the key
takeaway from this decision?
In today's episode, litigantsare free to, and are well
advised to that's my emphasis,not the court's mitigate the
(14:06):
risk of this uncertain legalregime by coming to their own
agreement about how to addresstext messages in discovery.
Rule 29B specifically affordsthe party's flexibility to
design their own, mutuallyagreed upon protocols for
handling discovery.
That comment was designed, toquote, give greater
opportunities for litigants toagree upon modifications to the
(14:27):
procedures governing discoveryor to limitations upon discovery
.
Rule 29B not only permits butencourages counsel to agree on
less expensive andtime-consuming methods to obtain
information.
According to the court, ingeneral, parties are better
positioned than the court tocustomize a discovery protocol
(14:49):
that suits the needs of the case, given their greater
familiarity with the facts, thelikely significance of text
message evidence and theanticipated volume and costs of
the discovery.
Now here, as I mentioned at theoutset, the parties did
negotiate an agreement on theproduction of text messages.
It just didn't go far enough.
(15:10):
The parties agreed on threethings regarding the text
messages.
One it just didn't go farenough.
The parties agreed on threethings regarding the text
messages.
One, that discovery in the casewould encompass text messages
that's a good thing.
Two, that agreed upon searchterms would be used to identify
potentially responsive textmessages Also a good thing, but
really hard unless you'reactually looking at the data and
figuring out what search termsthe parties used in text message
(15:31):
.
And three, that any time asearch term hit on a text
message, counsel would reviewall messages in the same chain
sent or received the same day,regardless of whether the
initial text message that hit onthe search term was responsive
and relevant.
So, taking that last one intoaccount, the parties did
(15:54):
actually consider relevance aspart of their agreement.
They just didn't talkspecifically about redaction for
relevance.
Both sides then producedresponsive and relevant text
messages in the form of same-daytext chains, manifesting their
mutual assent that a same-daychain represented the
appropriate unit of production.
But the parties did notexplicitly address whether text
(16:17):
deemed irrelevant ornon-responsive would be redacted
.
Instead, the chains needed tobe produced in their entirety or
instead sorry I missed that orwhich is key here so they did
not explicitly address whethertexts deemed irrelevant and
non-responsive would be redactedor instead the chains needed to
(16:40):
be produced in their entirety.
Very important point Defendantsdid not redact the text
messages for relevance, but theplaintiffs did, and this quote
from Magistrate Judge Steinreally sums up what I believe is
the core issue when it comes tomanaging discovery.
Quote.
One might think that beforeproducing hundreds of unredacted
(17:02):
text chains in their entiretyin the case of defendants or
before going to the trouble andexpense of redacting tens of
thousands of messages from morethan a thousand text chains as
in the case of plaintiffscounsel would have contacted its
adversary to confirm that theother side was handling their
(17:22):
production in the same manner.
Such an inquiry would haveflushed out the party's
disparate understandings and ledto additional negotiations and
perhaps an agreement on theredaction issue, which, I'm
going to add, would haveprecluded this motion to compel,
but neither counsel called oremailed or texted its adversary
to engage in that discussion.
(17:43):
Essentially, the party'sdispute here asked the court to
fill in the gap on the party'sagreement on text messages,
something that the court reallywas unwilling to do.
The court looked back at theAlthani decision as the law of
the district and found thatplaintiffs wholeheartedly
ignored it.
It also dismissed plaintiffs'attempts to distinguish Althani,
(18:04):
finding that if the plaintiffswanted to make redactions
without defendant's agreement,they needed to seek the court's
permission to do so.
Instead, having formed anagreement with defendants that
resulted in defendants'production of unredacted text
messages, the plaintiffs werenot free to decide on their own
that redactions were appropriate.
(18:24):
Interestingly, magistrate JudgeStein also looked at and applied
the reasoning in the inraeActos decision.
In that case, the court denieda party's ability to produce the
last-in-time email threadbecause the parties did not
negotiate the use of emailthreading in their ESI protocol.
The court specifically notedand we've talked about this on
(18:45):
our email threading case of theweek episodes that by only
providing the last in time email, the receiving party was
precluded from having anymetadata of the emails that were
also in those email chains andthat that was not proper absent
agreement between the parties.
So you can see that sort ofequating the two but again
(19:06):
separate sources of ESI that youneed to think about.
Email threading is one of thetools that you need to think
about.
An email threading is one ofthe tools that you need to think
about in how email is producedas a source of ESI.
The court also noted that theplaintiff's position on
redacting their text messageswas contrary to what the
plaintiffs had done on email.
The plaintiffs did not redactemail messages for
(19:27):
non-responsiveness, redact emailmessages for non-responsiveness
and that is always going to bea red flag.
The court did permit theparties to meet and confer on a
process for identifying highlysensitive text messages to be
marked attorney's eyes only andoffered the parties multiple
alternatives to handle thatissue.
That included the followingthey could amend the existing
(19:48):
protective order to permit anAEO designation for text
messages.
They could amend the existingprotective order to permit an
AEO designation for textmessages.
They could arrange for opposingcounsel to review the highly
sensitive text messages inperson at counsel's office to
confirm for themselves thatmessages were not relevant and
allow redaction.
They could permit redactions ofparticular categories of highly
sensitive text messages, as wedo with redaction in normal
(20:11):
collections or any other form oftreatment that counsel agrees
to that the court adopts Withthat.
The court granted defendant'smotion to compel subject to the
meet and confer on the highlysensitive information and
ordered the plaintiffs toproduce the text messages
unredacted.
There was no discussion ofcosts on this motion to compel.
(20:32):
Oftentimes I find that in thesesorts of situations, where
there's a legitimate dispute,the court does not consider or
award costs.
So what are our takeaways fromtoday's decision, some of which
we've already discussed.
Magistrate Judge Stein'sdecision here states that it is
black letter law in the SouthernDistrict of New York that if
(20:53):
you do not agree otherwise, aparty may not redact for
non-responsiveness in textmessages or in emails.
Keep that in your back pocketand use it to negotiate what you
want.
Text messages are a differentbeast.
What you want Text messages area different beast.
(21:14):
You need to consider thelanguage of your agreements or a
protocol, if you have one, onhow you address text messages.
Use the three things that theparties agreed to here and then
also add redaction to that.
Now this next takeaway sums upmost everything that we discuss
here on Case of the Week andthat I advocate with all of my
clients.
The complexity of each source ofESI means that you need to
(21:36):
consider and plan for theidentification, review and
production of each sourcedifferently.
Here the plaintiffs didn'tredact any non-responsive emails
before producing them, butchose to redact non-responsive
text messages withoutcommunicating with the other
side.
That's never going to go overwell.
And that brings me to thesecond point.
(21:58):
You have to be consistent inhow you handle ESI across
sources, or you have to agreethat you're going to handle
things differently acrosssources, and that agreement
should be in writing.
Now, both of those come with acaveat, and it's one that the
court points to here and we'veseen over and over again in
(22:20):
decisions.
The federal rules of civilprocedure and their state
equivalents give you the toolsto negotiate whatever works for
the parties.
Tools to negotiate whateverworks for the parties, and if
that doesn't work, to come tothe court to hash it out before
you produce documents.
Producing and then hoping forthe best is a terrible strategy
(22:41):
and it's a sure ticket toemotion to compel, as we saw
here and have seen so many timesbefore on our case of the week.
Broadcast Text messages aretricky.
People communicate muchdifferently via text than they
do in email.
One of the things the courtnotes here in its decision is
that typically email tends tofollow a given topic.
(23:02):
Now that is a real 50-50 frommy experience, but text messages
are 100% jumping from topic totopic to topic all the time.
I went back and looked at someof my text message strings with
individuals just over the courseof the last week and the crazy
(23:23):
jump from topic to topic totopic where search terms might
hit on a chain for thatparticular day, as the parties
agreed to here would haveincluded all kinds of
non-responsive information thatI wouldn't have wanted to
produce.
So it's really important for youto consider that, and the best
way to do it, the best way tohandle that, is to look at the
(23:44):
data.
You cannot do e-discoveryeffectively without looking at
the data.
Tell the other side you need tosee your client's data first to
identify the issues to discuss.
Then review the data, identifythose issues and make an
agreement with the other side.
Text messages are in every casethat we handle at ESI Attorneys
(24:07):
every single one.
It's an incredibly common formof communication because it
appears right on the phone'shome screen and it's often a
much faster way to reach people,especially in the remote world
that we live in.
Our job as Discovery Council isnot only to change how, is not
to change how people communicate, but to understand how evidence
(24:30):
is created, stored, sent andreceived and work with that
evidence in the best and mostcost-effective way to tell the
story we want to tell.
There is tremendous power inESI to tell a story, to
understand your story early, tobe able to identify and mitigate
(24:52):
risk in litigation, to get tothe facts faster than we ever
could with paper or pre thetechnologies that we have now to
handle, organize and presentESI.
But to do that effectively youhave to plan for it at the
outset and go through eachdetail of each source of ESI to
(25:17):
have the data to tell the story.
I typically at all of mydiscovery conferences, which are
at the very initial stages ofcases with clients, we say what
is the story that we want totell and how are we going to
tell that story?
When you don't know what storyit is you want to tell, you
start more broadly.
When you know the story it isthat you want to tell and what
(25:39):
evidence is there, you can focusin Either way.
You want to keep continuouslyrefining that story based on
what you see in data and whereyou get data from.
Plan for each source of ESI,especially text messages, as
we've seen here.
Create a checklist of thequestions you need to ask and
(26:00):
the sources of ESI and nuancesfor each one.
You can use one of ours ineDiscovery Assistant to get you
started and tailor it to yourneeds and your matters.
There is no one-size-fits-all ine-discovery planning.
It needs to be tailored to thematters that you handle, the
industry that your client is inand the sources of ESI at issue.
(26:22):
All right, that's our case ofthe week for this week.
Be sure to tune in for our nextepisode, whether you're
watching us via our blog,youtube or downloading it as a
podcast on your favorite podcastplatform.
You can also find back issuesof Case of the Week on your
favorite podcast platform and besure to subscribe, as we'll be
adding new content apart fromthe Case of the Week segments
(26:44):
coming this month.
Thanks and have a great week.
Thanks for joining me on theCase of the Week podcast.
Tune in next episode as Idiscuss a new decision in
eDiscovery case law and identifythe issues you need to be
paying attention to and how theycan help you do better
discovery for your clients andleverage the power of ESI.
Be sure to subscribe and leavea review to help others discover
(27:06):
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
Welcome to the Case of the Week podcast, where
each week, we break down arecent decision in electronic
discovery case law and talkabout the practical impact for
you and your clients and keepyou up to date on your
obligations with electronicallystored information as evidence.
If you're a litigator, legalprofessional or you love the
power of ESI as much as I do,this is the place to be.
(00:35):
I'm Kelly Twigger, the CEO andfounder of eDiscovery Assistant
and the principal at ESIAttorneys, with more than 25
years of experience navigatingthe evolving landscape of
litigation and e-discovery.
I'm a practicing attorney,author, speaker, entrepreneur
and now podcaster who works as adiscovery strategist and expert
for clients at ESI Attorneysand to provide that knowledge to
(00:58):
all legal professionals throughour e-discovery assistant
platform.
In each episode, we'll tackle anew decision in eDiscovery case
law and how it shapes both yourlitigation strategy and
planning for risk mitigation.
If you're ready for blunt,actionable insights that keep
you ahead of the curve, andmaybe a few laughs along the way
, this is your go-to podcast.
(01:19):
Subscribe or follow now tostart embracing the power of ESI
as evidence.
Hi and welcome to our Case ofthe Week segment on our podcast.
My name is Kelly Twigger.
I'm the principal at ESIAttorneys, a law firm for
(01:42):
e-discovery and information law,and the CEO and founder at
e-discovery assistant, where wetake the insights from our
practice and provide a knowledgeplatform for you to leverage
the power of ESI.
Thanks so much for joining metoday.
Before we get started, I wantedto take a minute and
acknowledge the absolutedevastation that is happening in
the Los Angeles area.
(02:03):
We are no stranger to forestfires here in Colorado and my
heart goes out to all of thosewho have lost their homes and
loved ones, and also to thoseliving in the area who are
battling the conditions thatsuch fires create.
Please consider donating if youcan to help folks rebuild their
homes and their lives.
We'll add some links to the RedCross and other organizations
(02:25):
in the show notes and in thecomments as well, and thank you
in advance for your generosity.
One quick announcement about theupcoming University of Florida
eDiscovery conference, to beheld virtually and in person on
February 12th through 13th 2025.
So coming up in just a month,this is 16 plus CLE hours of
(02:46):
practical education thatincludes ethics, technology from
the best in the business ineDiscovery, and it is free to
attend virtually.
Please mark your calendars andget registered.
We'll include that link both inthe show notes and in the
comments.
I've had the pleasure ofparticipating on the planning
committee for the UFE DiscoveryConference for the last 11 years
(03:07):
and we worked, starting in May,to put together an amazing
program about the current issuesfacing us in electronic
discovery.
You can view the full agenda atufediscoveryconferencecom and,
as I mentioned, we'll drop alink to register All right.
Now back to our show.
Our goal here on the Case ofthe Week segment is to identify
(03:28):
practice points for you inplanning for, negotiating and
requesting ESI and discovery.
By reviewing recent decisionsfrom the courts, our goal is to
help you issue spot, torecognize the issues that you
need to focus on in eDiscoverybefore you need them and to help
you identify the right languageto use when you need it.
(03:50):
This week's decision isparticularly important because
it addresses the age-oldquestion of that we had with
paper and now we have with everyindividual source of ESI Can a
producing party redactnon-responsive information
before producing it?
Today's decision deals withthat messy issue of redaction in
(04:12):
text messages, and it's a keyone because such a high
percentage of cases now involvedata from mobile devices and,
specifically, text messages.
What's also key that we'll seehere from Judge Magistrate
Stein's ruling is that, eventhough how people communicate
via text is radically differentfrom how they communicate in
email, generally, parties cannotredact for non-responsiveness
(04:35):
unless the parties agree to itin writing.
Now let's dive into this week'svery well-written and thoughtful
decision from Magistrate JudgeGary Stein.
This one comes to us from thematter titled we the Protesters
Inc vs Sing Yong Wei.
This decision is from December18th 2024, so just under a month
(04:56):
ago and will be included in ourcase law report for 2024 that
will be distributed at theUniversity of Florida eDiscovery
conference.
You'll also be able to accessthat report if you're signed up
for our newsletter.
And if you're not signed up forthe newsletter, you can do that
at ediscoveryassistantcombackslash blog.
So signing up for the blog willalso sign you up for our weekly
(05:19):
newsletter.
Today's decision can be viewedvia the link in the show notes
or in the comments.
It always drives me crazy whenan article or podcast references
a case and then cites thedocket number which you can
never find because the text ofthat decision sits behind a
firewall.
So at eDiscovery Assistant, wedecided to make every case in
(05:39):
our curated database availableat a public link for you to
review.
We want you to read thedecisions and learn how to do
eDiscovery better and moreeffectively for your clients, so
check out the link.
This is a shorter decision, butdefinitely worth a read.
Magistrate Judge Stein has ninedecisions in our eDiscovery
Assistant database.
(06:00):
As always, we've tagged each ofthe decisions, including this
one, with our proprietary issuetagging structure in eDiscovery
Assistant, which allows ourusers to find decisions without
relying on complicated searchstrings.
This week's issues includefailure to produce ESI protocol
redaction, cooperation ofcounsel, text messages and email
(06:21):
threading.
All right, what are the factsof this case?
Well, the facts are prettyshort, so we're going to combine
our facts and analysisdiscussion today, and so these
are really simple.
Basically, the parties agreedto produce text messages in
discovery, that they would usesearch terms to identify
responsive texts and that allmessages in the same chain on
(06:44):
the same day as a responsivesearch term appeared, would be
produced quote regardless ofwhether the initial text message
that hit on the search term wasresponsive and relevant.
Close quote.
Now, that last piece,regardless of relevance, is a
bit of foreshadowing for youliterary buffs out there like me
(07:04):
.
Ok, With that agreement inplace, the plaintiffs produced
thousands of text messagestrings, many of which were
redacted for relevance.
Defendants produced hundreds oftext message strings and did
not redact them for relevance.
Defendants then objected toplaintiffs' production, arguing
that the plaintiffs were notentitled to redact for relevance
(07:25):
, and this motion to compelensued.
Now what I love here is JudgeStein's opening quotes right at
the top of this decision.
Quote before the court is adiscovery dispute that
underscores the importance ofcounsel fashioning clear and
comprehensive agreements whennavigating the perils and
pitfalls of electronic discovery.
(07:47):
Close quote I mean this is atheme that we've seen here and
which amplifies our message thatI routinely have for my clients
and I talk about through theeDiscovery Assistant platform as
well as here on Case of theWeek, and it's one that every
litigator needs to understand.
Ediscovery is hard.
It's a constantly moving target.
(08:07):
Every time the technology weuse to create, store, send and
receive ESI changes.
It's one that you need tofigure out for your matters and
for the sources of ESI that areinvolved in the cases you're
handling.
Every single source of ESI hasto be considered and handled
(08:28):
differently.
Now, what do I mean by a sourceof ESI?
Because I use that language allthe time.
Recently, one of my listenersreached out and said hey, it'd
be great if you could explainsome of these terms that you use
.
So we'll try to start doingmore of that.
A source of ESI means the datathat is created by an
application that is discoverable.
So the sources of ESI that wedeal with routinely include
(08:50):
email databases, text messages,each individual social media
platform, slack Teams and somany others.
I mean we can go on and on andon.
The list is very exponential.
You know Google Mail, yahooMail, any sort of web-based mail
.
Every single platform can haveone or more data or file types
(09:12):
that come from it, differentmetadata fields that need to be
provided and a form that needsto be readable by the receiving
party.
It's complicated and hard tostay on top of.
Magistrate Judge Stein'sdecision in this intellectual
property dispute that we'retalking about today does a great
job of analyzing the case lawon one specific source of ESI
(09:36):
text messages.
It's clear, with as much timeas I spend reading the case law
each year, the text messageshave emerged much more
prominently over the last twoyears as a very critical source
of ESI.
If you'll recall from listeningto previous episodes, the court
in the Hunter's Capital casefound a conspiracy to destroy
(09:56):
text messages that wassufficient for dispositive
sanctions In Mazier v City ofAtlanta, which was a 2024 case.
The failure to preserve textmessages led to the denial of
summary judgment and significantcosts imposed against the city
for a failure to preserve threetext messages.
In Safe Light versus Lockridge,which is a really recent
(10:17):
episode.
Here on Case of the Week, thedefendant's failure to preserve
text messages led to prejudiceand to an adverse inference
instruction.
Text messages are key evidencenow and they are how individuals
communicate in our world wherewe expect every communication to
be responded to immediately.
Magistrate Judge Stein'sdecision here includes an
(10:41):
excellent discussion on thechallenges of dealing with text
messages.
Quote text messages are anincreasingly common source of
relevant and often criticalevidence in 21st century
litigation.
They do not, however, fitneatly into the paradigms for
document discovery embodied byRule 34 of the Federal Rules of
(11:02):
Civil Procedure, which wascrafted with different modes of
communication in mind.
Although Rule 34 was updated in2006 to acknowledge expressly
the existence of electronicallystored information, or ESI, as
distinct from hard copydocuments, the dominant form of
ESI at the time by far was email.
(11:25):
Email at least retains aresemblance to conventional
documents in that each email oremail chain can be viewed as a
single identifiable documentWith text messages.
That is not so clear Fordiscovery purposes.
Should each text message beviewed as its own standalone
document or item of ESI, or isthe relevant document the entire
(11:47):
chain of text messages betweenthe custodian and the other
individual or individuals on thechain, which could embrace
hundreds or thousands ofmessages going back for years?
Should the producing party beallowed to redact non-responsive
texts and, if so, to whatextent?
Litigants and courts are stillin the process of figuring out
how to answer these questions.
(12:08):
Close quote the court thenturned to looking at the
existing law on redacting textmessages, specifically the
Lubrizol case, which we coveredon an earlier episode of Case of
the Week.
That case involved theredaction of slacked messages
considered akin to text messagesby the judge there, and the
court in Lubrizol ultimatelyrelied on the party's agreement
(12:30):
to produce 10 messages beforeand after the words that hit on
search terms, but referencingthe approach taken in the
leading case on this issue inthe district in the Southern
District of New York where thiscase was taking place.
That case is called Alfaniversus Hankey from 2022.
Hanky from 2022.
(12:55):
Magistrate Judge Stein notedthat some courts have suggested
that a party must produce theentirety of a text message
conversation that contains atleast some responsive messages.
And he notes that in Al Thani,judge Cronin applied, in the
context of text messages, thegeneral rule restricting a
producing party from redactingunrelated, non-privileged
information from an otherwiseresponsive document, precluding
(13:20):
redaction for non-responsivematerial.
Finding no reason to go againstthe weight of authority in this
district, which holds thatparties may not unilaterally
redact otherwise discoverabledocuments for reasons other than
privilege, the Althani courtordered the defendant there to
produce the unredacted textmessages between herself and
(13:41):
another defendant in theirentirety.
But what Judge Magistrate JudgeStein says next is the key
takeaway from this decision?
In today's episode, litigantsare free to, and are well
advised to that's my emphasis,not the court's mitigate the
(14:06):
risk of this uncertain legalregime by coming to their own
agreement about how to addresstext messages in discovery.
Rule 29B specifically affordsthe party's flexibility to
design their own, mutuallyagreed upon protocols for
handling discovery.
That comment was designed, toquote, give greater
opportunities for litigants toagree upon modifications to the
(14:27):
procedures governing discoveryor to limitations upon discovery
.
Rule 29B not only permits butencourages counsel to agree on
less expensive andtime-consuming methods to obtain
information.
According to the court, ingeneral, parties are better
positioned than the court tocustomize a discovery protocol
(14:49):
that suits the needs of the case, given their greater
familiarity with the facts, thelikely significance of text
message evidence and theanticipated volume and costs of
the discovery.
Now here, as I mentioned at theoutset, the parties did
negotiate an agreement on theproduction of text messages.
It just didn't go far enough.
(15:10):
The parties agreed on threethings regarding the text
messages.
One it just didn't go farenough.
The parties agreed on threethings regarding the text
messages.
One, that discovery in the casewould encompass text messages
that's a good thing.
Two, that agreed upon searchterms would be used to identify
potentially responsive textmessages Also a good thing, but
really hard unless you'reactually looking at the data and
figuring out what search termsthe parties used in text message
(15:31):
.
And three, that any time asearch term hit on a text
message, counsel would reviewall messages in the same chain
sent or received the same day,regardless of whether the
initial text message that hit onthe search term was responsive
and relevant.
So, taking that last one intoaccount, the parties did
(15:54):
actually consider relevance aspart of their agreement.
They just didn't talkspecifically about redaction for
relevance.
Both sides then producedresponsive and relevant text
messages in the form of same-daytext chains, manifesting their
mutual assent that a same-daychain represented the
appropriate unit of production.
But the parties did notexplicitly address whether text
(16:17):
deemed irrelevant ornon-responsive would be redacted
.
Instead, the chains needed tobe produced in their entirety or
instead sorry I missed that orwhich is key here so they did
not explicitly address whethertexts deemed irrelevant and
non-responsive would be redactedor instead the chains needed to
(16:40):
be produced in their entirety.
Very important point Defendantsdid not redact the text
messages for relevance, but theplaintiffs did, and this quote
from Magistrate Judge Steinreally sums up what I believe is
the core issue when it comes tomanaging discovery.
Quote.
One might think that beforeproducing hundreds of unredacted
(17:02):
text chains in their entiretyin the case of defendants or
before going to the trouble andexpense of redacting tens of
thousands of messages from morethan a thousand text chains as
in the case of plaintiffscounsel would have contacted its
adversary to confirm that theother side was handling their
(17:22):
production in the same manner.
Such an inquiry would haveflushed out the party's
disparate understandings and ledto additional negotiations and
perhaps an agreement on theredaction issue, which, I'm
going to add, would haveprecluded this motion to compel,
but neither counsel called oremailed or texted its adversary
to engage in that discussion.
(17:43):
Essentially, the party'sdispute here asked the court to
fill in the gap on the party'sagreement on text messages,
something that the court reallywas unwilling to do.
The court looked back at theAlthani decision as the law of
the district and found thatplaintiffs wholeheartedly
ignored it.
It also dismissed plaintiffs'attempts to distinguish Althani,
(18:04):
finding that if the plaintiffswanted to make redactions
without defendant's agreement,they needed to seek the court's
permission to do so.
Instead, having formed anagreement with defendants that
resulted in defendants'production of unredacted text
messages, the plaintiffs werenot free to decide on their own
that redactions were appropriate.
(18:24):
Interestingly, magistrate JudgeStein also looked at and applied
the reasoning in the inraeActos decision.
In that case, the court denieda party's ability to produce the
last-in-time email threadbecause the parties did not
negotiate the use of emailthreading in their ESI protocol.
The court specifically notedand we've talked about this on
(18:45):
our email threading case of theweek episodes that by only
providing the last in time email, the receiving party was
precluded from having anymetadata of the emails that were
also in those email chains andthat that was not proper absent
agreement between the parties.
So you can see that sort ofequating the two but again
(19:06):
separate sources of ESI that youneed to think about.
Email threading is one of thetools that you need to think
about.
An email threading is one ofthe tools that you need to think
about in how email is producedas a source of ESI.
The court also noted that theplaintiff's position on
redacting their text messageswas contrary to what the
plaintiffs had done on email.
The plaintiffs did not redactemail messages for
(19:27):
non-responsiveness, redact emailmessages for non-responsiveness
and that is always going to bea red flag.
The court did permit theparties to meet and confer on a
process for identifying highlysensitive text messages to be
marked attorney's eyes only andoffered the parties multiple
alternatives to handle thatissue.
That included the followingthey could amend the existing
(19:48):
protective order to permit anAEO designation for text
messages.
They could amend the existingprotective order to permit an
AEO designation for textmessages.
They could arrange for opposingcounsel to review the highly
sensitive text messages inperson at counsel's office to
confirm for themselves thatmessages were not relevant and
allow redaction.
They could permit redactions ofparticular categories of highly
sensitive text messages, as wedo with redaction in normal
(20:11):
collections or any other form oftreatment that counsel agrees
to that the court adopts Withthat.
The court granted defendant'smotion to compel subject to the
meet and confer on the highlysensitive information and
ordered the plaintiffs toproduce the text messages
unredacted.
There was no discussion ofcosts on this motion to compel.
(20:32):
Oftentimes I find that in thesesorts of situations, where
there's a legitimate dispute,the court does not consider or
award costs.
So what are our takeaways fromtoday's decision, some of which
we've already discussed.
Magistrate Judge Stein'sdecision here states that it is
black letter law in the SouthernDistrict of New York that if
(20:53):
you do not agree otherwise, aparty may not redact for
non-responsiveness in textmessages or in emails.
Keep that in your back pocketand use it to negotiate what you
want.
Text messages are a differentbeast.
What you want Text messages area different beast.
(21:14):
You need to consider thelanguage of your agreements or a
protocol, if you have one, onhow you address text messages.
Use the three things that theparties agreed to here and then
also add redaction to that.
Now this next takeaway sums upmost everything that we discuss
here on Case of the Week andthat I advocate with all of my
clients.
The complexity of each source ofESI means that you need to
(21:36):
consider and plan for theidentification, review and
production of each sourcedifferently.
Here the plaintiffs didn'tredact any non-responsive emails
before producing them, butchose to redact non-responsive
text messages withoutcommunicating with the other
side.
That's never going to go overwell.
And that brings me to thesecond point.
(21:58):
You have to be consistent inhow you handle ESI across
sources, or you have to agreethat you're going to handle
things differently acrosssources, and that agreement
should be in writing.
Now, both of those come with acaveat, and it's one that the
court points to here and we'veseen over and over again in
(22:20):
decisions.
The federal rules of civilprocedure and their state
equivalents give you the toolsto negotiate whatever works for
the parties.
Tools to negotiate whateverworks for the parties, and if
that doesn't work, to come tothe court to hash it out before
you produce documents.
Producing and then hoping forthe best is a terrible strategy
(22:41):
and it's a sure ticket toemotion to compel, as we saw
here and have seen so many timesbefore on our case of the week.
Broadcast Text messages aretricky.
People communicate muchdifferently via text than they
do in email.
One of the things the courtnotes here in its decision is
that typically email tends tofollow a given topic.
(23:02):
Now that is a real 50-50 frommy experience, but text messages
are 100% jumping from topic totopic to topic all the time.
I went back and looked at someof my text message strings with
individuals just over the courseof the last week and the crazy
(23:23):
jump from topic to topic totopic where search terms might
hit on a chain for thatparticular day, as the parties
agreed to here would haveincluded all kinds of
non-responsive information thatI wouldn't have wanted to
produce.
So it's really important for youto consider that, and the best
way to do it, the best way tohandle that, is to look at the
(23:44):
data.
You cannot do e-discoveryeffectively without looking at
the data.
Tell the other side you need tosee your client's data first to
identify the issues to discuss.
Then review the data, identifythose issues and make an
agreement with the other side.
Text messages are in every casethat we handle at ESI Attorneys
(24:07):
every single one.
It's an incredibly common formof communication because it
appears right on the phone'shome screen and it's often a
much faster way to reach people,especially in the remote world
that we live in.
Our job as Discovery Council isnot only to change how, is not
to change how people communicate, but to understand how evidence
(24:30):
is created, stored, sent andreceived and work with that
evidence in the best and mostcost-effective way to tell the
story we want to tell.
There is tremendous power inESI to tell a story, to
understand your story early, tobe able to identify and mitigate
(24:52):
risk in litigation, to get tothe facts faster than we ever
could with paper or pre thetechnologies that we have now to
handle, organize and presentESI.
But to do that effectively youhave to plan for it at the
outset and go through eachdetail of each source of ESI to
(25:17):
have the data to tell the story.
I typically at all of mydiscovery conferences, which are
at the very initial stages ofcases with clients, we say what
is the story that we want totell and how are we going to
tell that story?
When you don't know what storyit is you want to tell, you
start more broadly.
When you know the story it isthat you want to tell and what
(25:39):
evidence is there, you can focusin Either way.
You want to keep continuouslyrefining that story based on
what you see in data and whereyou get data from.
Plan for each source of ESI,especially text messages, as
we've seen here.
Create a checklist of thequestions you need to ask and
(26:00):
the sources of ESI and nuancesfor each one.
You can use one of ours ineDiscovery Assistant to get you
started and tailor it to yourneeds and your matters.
There is no one-size-fits-all ine-discovery planning.
It needs to be tailored to thematters that you handle, the
industry that your client is inand the sources of ESI at issue.
(26:22):
All right, that's our case ofthe week for this week.
Be sure to tune in for our nextepisode, whether you're
watching us via our blog,youtube or downloading it as a
podcast on your favorite podcastplatform.
You can also find back issuesof Case of the Week on your
favorite podcast platform and besure to subscribe, as we'll be
adding new content apart fromthe Case of the Week segments
(26:44):
coming this month.
Thanks and have a great week.
Thanks for joining me on theCase of the Week podcast.
Tune in next episode as Idiscuss a new decision in
eDiscovery case law and identifythe issues you need to be
paying attention to and how theycan help you do better
discovery for your clients andleverage the power of ESI.
Be sure to subscribe and leavea review to help others discover
(27:06):
the show and be kept in theknow on all things electronic
discovery.
I'm Kelly Twigger.
See you next time.
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