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If you want to take a look at what’s on a defendants’ cell phone as part of ediscovery in a civil suit, don’t wait until the last minute to seek it, and perhaps don’t take a fishing-expedition approach to the ediscovery request. At least, that’s what plaintiffs discovered earlier this year when a federal judge denied their ediscovery request to examine text messages on more than 100 defendant cell phones.

The case—Kristopher Lawson, et. al v. Love’s Travel Stops & Country Stores (No. 1:17-CV-1266 in the U.S. District Court, M.D. Pennsylvania) is a Fair Labor Standards Act collective action that alleges that the retailer misclassified the operations manager plaintiffs as exempt managerial employees and did not pay them overtime as required by law. To what extent the dispute between upper management and its operational managers was the subject of text messaging prior to the litigation is anyone’s guess, but both sides in the case decided that they wanted to take a close ediscovery look at their opponent’s phones. 

I Showed You Mine, So Show Me Yours!

In fact, the plaintiffs’ request comes across as a little tit-for-tat, as the request wasn’t made until after Judge Martin Carlson granted Love’s the right to conduct narrowly tailored ESI searches of opt-in plaintiff cell phone text messages, and after Love’s disputed the adequacy of the subsequent ediscovery effort. 

One would think that given the limited relief the judge granted Love’s with a narrowly tailored ESI search of the plaintiff’s cell phones, the plaintiff’s may have been a little restrained in their own ediscovery request. But no. Plaintiff’s requested all text messages from company owned phones, “not bound or defined by any considerations of factual relevance to the issues in this litigation,” according to Love’s.

Defense Shreds eDiscovery Request Via Rule 26 Considerations

The defendants further noted that such a broad-based ediscovery covered more than 100 company owned phones and smart devices. They estimated that the data capture and retention expenses nearing $200,000, not counting additional expenses relating to data search. Additionally, the defendants argued that the senior managers are “several rungs above operations managers in the corporate hierarchy,” and would thus “have little reason to communicate with or about the daily duties of the operations managers through text messages.”  They further bolstered their argument by pointing out nothing of relevance was found during the limited ediscovery of the plaintiffs’ cell phones, which suggests the unlikeliness that relevant text messages might be found on the phones of those far removed from the work of operations managers.

The judge, relying in large part on Rule 26 of the Federal Rules of Civil Procedure, agreed with the defendant’s arguments. Along with referring the ediscovery request as “tardy,” he agreed with Love’s that the ediscovery demand did not meet the proportionality thresholds set out in Rule 26. Not only was the breadth of the plaintiff’s request far too extensive, but the costs too burdensome.

Judge Turns to Supreme Court’s Cell Phone Thinking

In his ruling, the judge also referred to the Supreme Court’s thoughts on privacy and cell phones (Riley v. California 573 U.S. 373): “There is an element of pervasiveness that characterizes cell phones but not physical records. Prior to the digital age, people did not typically carry a cache of sensitive personal information with them as they went about their day. Now it is the person who is not carrying the cell phone, with all it contains, who is the exception. Today it is no exaggeration to say that many of the more than 90% of American adults who own a cell phone keep on their person a digital record of nearly every aspect of their lives—from the mundane to the intimate.”    

While the judge denied the plaintiff’s request for the text message ediscovery, he noted “that a more tightly focused request,” supported by a more specific showing of relevance, might be appropriate.” He ordered the parties to “consult, confer, and attempt to agree upon the scope of a carefully tailored, relevant search for such data,” and notify the court if unable to come to an agreement. 

No word yet on whether the parties came to an agreement, nor on whether the judge was notified of any such by text message. 

About the Author:

M.J. Moye

M.J. Moye

M.J. Moye is a demographics researcher and freelance writer. His interest in law was spurred by covering two Supreme Court cases and other legal issues during his stint as a Washington, DC journalist. In addition to Now Discovery, he currently provides on-call writing services to several lawyers. When not counting people or writing, he spends his time sailing the beautiful waters of Nova Scotia.

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