/>iIn We The Protesters, Inc., et al., v. Sinyangwe et. Al, the Southern District of New York was recently called upon to resolve a discovery dispute that, according to the Magistrate Judge, “underscore[d] the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery.” More specifically, the court was determining whether, without an express agreement between the parties’ counsel in place, plaintiffs could properly redact text messages based on responsiveness.
We The Protesters, Inc. Background
The litigation arose from a business divorce between the founders of nonprofit Campaign Zero. Plaintiffs’ complaint asserted 17 causes of action for inter alia, trademark infringement, unfair competition, misappropriation, and conversion. Defendants counterclaimed, accusing plaintiffs of copyright infringement, trademark infringement, cyberpiracy, and unfair competition.
In March 2024, the Hon. John P. Cronan granted in part and denied in part plaintiffs’ motion to dismiss three of defendants’ counterclaims. Discovery proceeded and the current dispute came to light after the parties exchanged productions of text messages and direct messages from a social media platform.
In drafting the operative discovery protocol, the parties agreed to collect and review all text messages in the same chain on the same day whenever a text within the chain hit on an agreed-upon search term. (Dkt. No. 64 at 1 & Ex. A). Plaintiffs understood this to mean they needed to produce only the portions of the messages from the same-day text chain that were responsive or provided context for a responsive text message.
Defendants had a different understanding, claiming the entire same-day text chain must be produced in unredacted form. Upon reviewing plaintiffs’ production, defendants objected and claimed plaintiffs’ unilateral redaction of these text messages was improper. Following an unsuccessful meet and confer, defendants filed a letter-motion seeking to compel production of unredacted copies of all text messages in the same chain that were sent or received within the same day. Plaintiffs responded, contending their redactions were proper and, in the alternative, seeking a protective order.
Discussion
Text Messages in Discovery
The court’s decision began with the observation that text messages are an increasingly common source of relevant and often critical evidence in 21st century litigation.[1] According to the court, text messages do not fit neatly into the paradigms for document discovery embodied by Rule 34 of the Federal Rules. Although amended in 2006 to acknowledge the existence of electronically stored information (ESI), i.e., email, the rules were crafted with different modes of communication in mind. Unlike emails, with text messages each text or chain cannot necessarily be viewed as a single, identifiable “document.”
And so, the issue is whether, for discovery purposes, each text message should be viewed as its own stand-alone “document”? Or is the relevant “document” the entire chain of text messages between the custodian and the other individual(s) on the chain, which could comprise hundreds or thousands of messages spanning innumerable topics?[2]
As the opinion notes, federal courts have adopted different approaches with respect to text messages. Some courts, including the Southern District of New York, suggest that a party must produce the entirety of a text message conversation that contains at least some responsive messages.[3] By contrast, other jurisdictions, like the Northern District of Ohio, hold “the producing party can unilaterally withhold portions of a text message chain that are not relevant to the case.”[4] “Still other courts have taken a middle ground.”[5]
Against this backdrop, the court noted that litigants are free to—and are well-advised to—mitigate the risk of this uncertain legal regime by agreeing on 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, but “encourage[s]” counsel “to agree on less expensive and time-consuming methods to obtain information.”[6] Such “‘private ordering of civil discovery’” is “‘critical to maintaining an orderly federal system’” and “‘it is no exaggeration to say that the federal trial courts otherwise would be hopefully awash.’”[7]
The court noted 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. 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.[8]
Resolution Where Agreement is Incomplete
Here, the court noted the parties negotiated an agreement regarding the treatment of text messages. However, the agreement was incomplete. According to the court, email exchanged between the parties, along with the parties’ summary of the verbal discussions that took place show agreement that (1) discovery would include text messages; (2) specific search terms would be used to identify potentially responsive text messages; and (3) when 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 text message that hit on the search term was responsive. The parties both produced responsive text messages in the form of same-day text chains, manifesting mutual assent that a same-day chain represented the appropriate unit of production. However, the parties’ agreement 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. It was that failure that caused the instant dispute.
In resolving the dispute, the court viewed the issue through the prism of the parties’ prior agreement, discussions, and lack of discussions. The court indicated its task was not to determine the “right answer” to the redaction question in the abstract, but rather how to proceed with an agreement that was unknowingly incomplete. The court identified its task as akin to filling a gap in the parties’ incomplete agreement.[9]
In completing its task, the court noted the familiar principle of contract law that “contracting parties operate against the backdrop” of applicable law which, in this context, was supplied by Al Thani — the leading case in the Southern District on the issue of redactions from text messages and one authored by the presiding district judge in this litigation. Al Thani holds squarely that “parties may not unilaterally redact otherwise discoverable” information from text messages for reasons other than privilege.[10] Yet that is precisely what plaintiffs did.
The court further relied upon Judge Aaron’s decision in In re Actos Antitrust Litigation as instructive. In Actos, the issue involved “email threading,” i.e., the production of a final email chain in lieu of producing each separate constituent email. Specifically, a discovery dispute arose because defendants made productions “using email threading even though the Discovery Protocol, by its terms, did not permit such approach.”[11] Judge Aaron rejected defendants’ unilateral decision to use threading, explaining “if the issue had been raised when the parties were negotiating the Discovery Protocol, Plaintiffs may have been able to [avoid the issue], however, Plaintiffs were not provided the opportunity to negotiate how email threading might be accomplished in an acceptable manner.”[12] The court declined to impose threading on plaintiffs.
Here, the court found the Actos reasoning persuasive. If plaintiffs wanted to redact their text messages, it was incumbent upon them to negotiate an agreement to that effect or, in the absence of agreement, resolve the issue with the court before defendants made their production. Accordingly, as in Actos, the court construed the absence of a provision in the parties’ agreement allowing redaction of text messages to preclude plaintiffs from unilaterally redacting.
Considerations for Text Message Discovery
We The Protesters, Inc., is an important reminder of a few things. First, text messages and other forms of mobile instant messages are a critical form of evidence in today’s litigation. Any discovery protocol should address preservation, production, and potential redactions to that ESI. Additionally, given the cost and burden attendant to ESI, parties should leverage Rule 29(b) and fashion their own, mutually agreeable protocols for handling discovery, with an eye toward proportionality and efficiency. Finally, cooperation and communication are key in litigation. When in doubt, consider picking up the phone to opposing counsel. Here, had plaintiff confirmed its intention to redact content prior to production, much effort and cost may have been avoided.
[1] Mobile phone users in the United States sent an estimated 2 trillion SMS and MMS messages in 2021, or roughly 5.5 billion messages per day, a 25-fold increase from 2005. SMS and MMS messages represent only a subset of the universe of mobile instant messaging, or MIM, which also includes other means of messaging via mobile phones. MIM, in turn, does not account for the vast volume of instant messages, or IM, sent on computer-mediated communication platforms. The use of IM and MIM “has become an integral part of work since COVID-19.” Katrina Paerata, The Use of Workplace Instant Messaging Since COVID-19, Telematics and Informatics Reports (May 2023).
[2] After all, an email chain is typically confined to a single subject, whereas a single text chain can read more like a stream of consciousness covering countless topics.
[3] Lubrizol Corp. v. IBM Corp., (citing cases); see also Al Thani v. Hanke (noting the general rule that parties may not unilaterally redact otherwise discoverable documents for reasons other than privilege,) id. at *2; see also Vinci Brands LLC v. Coach Servs., Inc. (following Al Thani).
[4] Lubrizol at *4 (citing cases from various jurisdictions that follow this approach).
[5] Id. (citing cases from such jurisdictions).
[6] Id. 1993 Adv. Comm. Note.
[7] Brown v. Hearst Corp. (quoting 6 Moore’s Federal Practice § 26.101(1)(a)).
[8] See generally Jessica Erickson, Bespoke Discovery, 71 Vand. L. Rev. 1873, 1906 (2018) (“Parties should have more information than judges about the specific nature of their disputes and thus should be in a better position to predict the types of restrictions that will be appropriate.”).
[9] See In re World Trade Center Disaster Site Litig. (“In limited circumstances, a court may supply a missing term in a contract.”); Adler v. Payward, Inc.(“[C]ourts should supply reasonable terms to fill gaps in incomplete contracts.”) (citation omitted).
[10] Al Thani at *2.
[11] Id. at 551.
[12] Id.
