In today’s legal landscape, where electronically stored information (ESI) shapes the foundation of many cases, text messages and chat data have become critical sources of evidence. However, their inclusion in discovery processes has also highlighted significant challenges—particularly when it comes to managing relevance, sensitivity, and the practical realities of modern communication.
A recent case, We the Protesters, Inc. v. Sinyangwe, underscores the limitations of existing methods for handling text messages in litigation and the urgent need for innovative solutions. This case illustrates why the status quo of reviewing short form communication in a quasi-document fashion with 24-hour transcripts fails to meet the nuanced demands of eDiscovery in today’s world.
The Case: An ESI Lesson
In We the Protesters, Magistrate Judge Gary Stein addressed a discovery dispute involving text messages. The plaintiffs had redacted portions of text message chains for relevance, while the defendants produced unredacted chains. Despite an agreement to produce messages identified by search terms, along with the accompanying 24-hour period’s messages, the plaintiffs’ redactions of non-responsive messages created contention. The Court’s decision was clear: absent explicit agreement, redactions for relevance are impermissible.
Judge Stein’s ruling reiterated the importance of clear, comprehensive agreements for managing ESI. It also highlights the shortcomings of current discovery frameworks for handling dynamic and often context-rich data like text messages. The current reliance on daily transcripts exposes the shortcomings of attempting to force modern communication into a document-centric structure.
The Problem with 24-Hour Transcripts
Turning text messages into daily transcripts assumes a level of contextual uniformity that rarely exists in reality. It’s not unlike grouping all emails from a single day with the same participants into one document—a practice no eDiscovery practitioner would advocate. Modern communication platforms, whether SMS or collaborative chat, involve fragmented, often unrelated exchanges within a short timeframe. A single day’s transcript may include multiple conversations about entirely different topics, some of which are wholly irrelevant or privileged.
Attempting to convert modern communication into a document record using the blunt instrument of a 24-hour time period forces litigators into problematic decisions:
- Should non-responsive content be produced unnecessarily, increasing the risk of exposing non-responsive, but otherwise sensitive information?
- Should redactions be applied broadly, at significant cost, risking disputes over completeness and transparency?
- Am I fulfilling my production obligation if term common operators like AND or Proximity cannot address terms on either side of a 24-hour time boundary?
Such dilemmas stem from technology and processes that haven’t kept pace with the realities of contemporary communication. What’s needed is a paradigm shift—one that prioritizes surgical precision over blunt instruments.
A Better Way: Contextual Grouping in Text Message Discovery
Our eDiscovery solution offers a more elegant approach. By allowing users to apply search terms to identify relevant messages and create tailored and automatically defined contextual windows around search hits, we enable precise production of only what’s necessary. Here’s why this matters:
- Flexibility in ESI Protocols: Attorneys and practitioners gain greater control over what’s produced, aligning discovery with the intent, which is the identification and production of what is responsive. This approach respects privilege and minimizes unnecessary inclusion of sensitive or non-responsive content.
- Avoiding Daily Transcripts: By focusing on conversations as a whole, we eliminate the need to group unrelated exchanges into arbitrary 24-hour periods. It also allows full adherence to negotiated search terms, supporting the application of common AND or Proximity operators across the full conversation, instead of being restricted to 24-hour snapshots.
- Reducing Redaction: Precise contextual windows reduce the volume of irrelevant content included, minimizing the need for redactions.
- Preserving the Narrative: Context is preserved without overwhelming the production with extraneous information, providing clarity for all parties.
Lessons from We the Protesters
Magistrate Judge Stein’s ruling offers several takeaways:
- Plan Ahead: Understand the nuances of text message data and account for them in discovery plans and ESI protocols.
- Negotiate Clearly: Use the flexibility of the Federal Rules to craft detailed agreements that address redactions, threading, and other ESI-specific challenges.
- Avoid Unilateral Actions: Redactions for relevance require explicit agreement. Transparency is key to avoiding disputes.
- Utilize Modern Solutions for Modern Data: Discovery for modern communication data requires solutions that are purpose-built for the modern data era and cannot be solved with document-centric thinking.
Conclusion: Adapting to Modern Realities
Text messages and chat data are not traditional documents, and treating them as such imposes unnecessary burdens and disputes in the discovery process. Instead, leveraging advanced tools to surgically manage these modern communication sources ensures that only relevant, responsive information is packaged and produced. As the We the Protesters decision illustrates, the stakes are high, and the need for smarter solutions has never been clearer.
It’s time to move beyond the limitations of the status quo. By embracing technology that aligns with the realities of traditional and modern ESI, we can streamline discovery, protect sensitive information, and achieve better outcomes for all parties involved.
