The December 18, 2024, decision in We the Protesters, Inc. v. Sinyangwe brings critical insights into managing electronic discovery, particularly the treatment of text messages as electronically stored information (ESI). The parties involved agreed to produce text messages identified through search terms and to produce message chains in their entirety from the same day, irrespective of relevance. This agreement aimed to streamline the discovery process, but exposed key challenges in the redaction of non-relevant information.

Plaintiffs produced thousands of text messages with many redactions for relevance, while defendants produced hundreds without redactions. When defendants objected to the plaintiffs’ redactions, the court was tasked with resolving the dispute. Magistrate Judge Stein emphasized the importance of crafting clear agreements when dealing with ESI, as the complexity of digital data continues to grow exponentially, encompassing platforms like email, Slack, and text messaging.

In this landmark decision, text messages are highlighted as a vital source of evidence that does not fit neatly within traditional discovery frameworks, such as Rule 34 of the Federal Rules of Civil Procedure. The court examined existing case law, including Lubrizol Corp. v. IBM Corp. and Al Thani v. Hanke, determining that parties should produce entire text message chains once a relevant term is found, barring any agreed protocol permitting redaction of non-responsive content.

Importantly, the court favored custom agreements between parties to manage ESI discovery better, as outlined in Rule 29(b). This flexibility is paramount, given the informality and varying communication styles prevalent in texts compared to emails. Simply put, legal teams should constantly negotiate and document agreements regarding ESI treatment and discovery.

The court found that although the parties had an agreement regarding text messages, the plaintiffs operated under an incorrect assumption about redacting for relevance without jointly establishing modified terms with the defendants. This oversight resulted in an avoidable motion to compel. Magistrate Judge Stein suggested that regular consultation between parties before making significant discovery choices might prevent such disputes.

Furthermore, referencing the In re Actos Antitrust Litig. decision, Judge Stein advised a consistent approach in handling ESI. Plaintiffs' failure to seek an agreement for text redactions while not redacting email raised concerns. The court permitted negotiation on handling highly sensitive texts marked as attorney’s eyes only and proposed several practical solutions, underscoring the adaptability of legal frameworks to specific cases.

The case exemplifies the necessity for thorough planning in ESI discovery and highlights text messages as increasingly commonplace in litigation. Judge Stein’s decision is a call to action for legal professionals to tailor discovery protocols that incorporate the particularities of ESI, especially text messages.

Ultimately, effective e-discovery requires understanding communication behaviors and collaboration amongst counsel. It is about not altering how people communicate but optimizing evidence handling. As text messages become an integral part of legal disputes, the ability to negotiate and adhere to clear, effective discovery protocols is invaluable.