Tag: Text Messaging and Other Real-Time Electronic Communications

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Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)
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Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)
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Laub v. Horbaczewski (C.D. Cal. 2020)
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In re: 3M Combat Arms Earplug Prods. Liab. Litig. (N.D. Fla., Oct. 2020)
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Gross v. Chapman (N.D. Ill. July 28, 2020)
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Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Gunter v. Alutiiq Advanced Security Solutions, LLC (D. Md. 2021)

Key Insight: Defendant alleged that Plaintiff altered the wording of text messages and fabricated a series of text messages. Plaintiff also failed to produce relevant text message and falsely testified that such messages did not exists which was proved by a later forensic review. The Court had serious doubts regarding the text messages at issue. Plaintiff has no explanation for why his cellphone contains some text messages but not others. For these reasons, the Court ruled the text messages could not be used as evidence and the cost of the forensic review of the cell phone would be shifted to Plaintiff. However, the case would not be dismissed as there was not the “clear evidence necessary to conclude that Plaintiff fabricated the text messages.”

Nature of Case: Employment Discrimination

Electronic Data Involved: Text Messages

Case Summary

Krishnan v. Cambia Health Solutions, Inc. (W.D. Wash. 2021)

Key Insight: Defendant cannot be compelled to produce text messages from employees’ personal cell phones because they did not have possession, custody, or control of the devices. An employer has possession, custody, or control of a cell phone when the employer issued the cell phone, the cell phone is used for business purposes, and the employer has a legal right to obtain communications from the cell phone.

An email does not become privileged simply by including counsel as a recipient to an email. If the email was not sent with the purpose of obtaining legal advice, it is not privileged.

An independent forensic examination of electronic devices for electronic communications is appropriate when a party intentionally delays or withholds relevant and discoverable communications.

Nature of Case: Wrongful Termination, Employment Law

Electronic Data Involved: Text Messages, Email

Case Summary

Laub v. Horbaczewski (C.D. Cal. 2020)

Key Insight: Plaintiffs sought Slack messages and defendants claimed they did not have access to the messages because of its level of Slack plan. The court instructed plaintiffs to pursue the Slack messages through a third party subpoena and defendants objected to the overbroad scope of the subpoena. The court concluded plaintiffs “credibly argued” that the Slack messages “may be relevant to the issues involved in this case,” but found that the request was not proportional to the needs of the case under the second prong of Rule 26(b)(1) because: (1) The defendants did not have access to the messages and requiring them to produce the messages would impose an undue burden and expense, and (2) the messages would likely be cumulative because the record was “replete with evidence of Plaintiffs’ involvement” and plaintiffs “offer no evidence that the private messages contain any novel or noteworthy information that warrant compelling their production.”

Nature of Case: Breach of contract

Electronic Data Involved: Instant messages

Case Summary

Gross v. Chapman (N.D. Ill. July 28, 2020)

Key Insight: Bride and groom called off their wedding after a dispute arose over whether it should be an “adults only” affair. The bride’s parents sued the groom’s parents claiming they were out over $100,000 in wedding costs. After defendants produced 5,000 text messages, the court declined to grant further discovery into the process surrounding how the text messages were collected. A large volume of ESI had already been produced at significant expense to defendants and plaintiff’s motion to compel was based on speculation— “discovery on discovery with no basis other than plaintiffs’ hopeful guess that there must be more texts” and was substantially out of proportion to the needs of the case.

Nature of Case: Invasion of Privacy

Electronic Data Involved: Text Messages

Case Summary

Lawson v. Love’s Travel Stops & Country Stores, Inc. (M.D. Penn. 2020)

Key Insight: The court denied Plaintiffs’ requests for additional text message discovery or the forensic imaging of cell phone data. The court emphasized the privacy implications of producing broad cell phone data, which often contain “the most intimate of persona details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

The court recognized “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.” The court directed the parties to work together to come to an agreement regarding the scope of a “carefully tailored, relevant search for such data.” Only if the parties cannot reach an agreement, would the court intercede.

Nature of Case: Fair Labor Standards Act, Employment Law

Electronic Data Involved: Text Messages, Cell Phone Data

Case Summary

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