Court Sets Protocol for Production and Review of Text Messages

Flagg v. City of Detroit, 2008 WL 787061 (E.D. Mich. Mar. 20, 2008)

Plaintiff in this case is the minor son of a murder victim, whose murder remains unsolved.  The complaint alleges that the defendants engaged in a laxity in investigation, deliberately ignored and actively concealed material evidence, and deprived the plaintiff of an opportunity to bring a wrongful death suit against the murderer.

In a separate order on March 20, 2008, the court denied defendants’ motion to quash subpoenas to SkyTel for the production of certain text messages.  The court found that the plaintiff was entitled to pursue the production of certain text messages sent or received by specified officials or employees of the City of Detroit (some of whom were also named as individual defendants in the suit) during specified time frames, using text messaging devices supplied by SkyTel.  The court observed that the relevance (and hence discoverability) of the text messages necessarily turned upon the content of the communications.  Thus, it was essential to establish a procedure for the review of the content of each such communication.  Moreover, because a communication might be relevant, but not subject to discovery, e.g., protected by a privilege, the court stated that the procedure must be capable of addressing such issues and objections to production.

Accordingly, the court issued this order establishing a protocol for review and production of text messages, and assigning two magistrate judges to perform the review.

Among other things, the protocol required defendants to turn over a list of “PIN” numbers for the text messaging devices issued to certain City of Detroit officials and employees, so that SkyTel would be able to supply the text messages sent or received by those particular officials and employees.  The assigned magistrate judge, along with a second magistrate judge, would then perform the tasks of (1) overseeing and controlling the process of obtaining text messages from SkyTel, (ii) reviewing these communications, and (iii) making the initial determination whether each such communication is discoverable under the standard of Fed. R. Civ. P. 26(b)(1).

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