Can Parties Redact Text Messages for Relevance in Discovery?

In today's fast-paced litigation landscape, electronically stored information (ESI) plays a critical role in shaping legal strategies and outcomes. Among the myriad sources of ESI, text messages have emerged as a critical form of evidence. They provide unique challenges for litigators, particularly when it comes to the contentious question: Can a party redact text messages for relevance absent an agreement? Magistrate Judge Gary Stein’s decision in We the Protesters, Inc. v. Sinyangwe sheds light on this crucial issue.

The Case at Hand

This December 2024 decision arose from a discovery dispute in which the plaintiffs redacted portions of text message chains for relevance while the defendants produced unredacted chains. The parties had agreed on three key aspects of text message discovery:

1. Discovery would encompass text messages.

2. Agreed-upon search terms would identify potentially responsive messages.

3. All messages within the same chain on the same day as a responsive search term would be produced.

However, the agreement did not explicitly address whether irrelevant portions of text message chains could be redacted. When defendants objected to the plaintiffs’ redactions, the Court stepped in to resolve the dispute.

The Court's Analysis

Magistrate Judge Stein’s decision underscored the importance of clear and comprehensive agreements when dealing with the discovery of ESI. He referenced existing case law, including Al Thani v. Hanke and In re Actos Antitrust Litigation, to support the principle that, absent an agreement, parties may not unilaterally redact non-responsive information. Magistrate Judge Stein held that plaintiffs, by redacting portions of their production without defendants’ consent or court approval, violated the parties’ agreement and established case law.

The Court provided a path forward, allowing the parties to negotiate an “attorney’s eyes only” protocol for highly sensitive messages. However, it unequivocally granted the defendants’ motion to compel production of unredacted text messages.

Practical Takeaways for Litigators

This decision highlights several critical lessons for litigators handling text messages and other ESI in discovery:

1. Plan for Text Messages as a Unique Source of ESI
   Text messages differ fundamentally from emails and other forms of ESI. They often lack a clear subject or topic, jump between unrelated issues, and may include non-responsive or sensitive content. As discovery counsel, you must account for these nuances in your discovery plans and agreements.

2. Negotiate Comprehensive Agreements
   The Federal Rules of Civil Procedure provide flexibility for parties to craft discovery agreements tailored to their needs. Use this flexibility to address potential issues, including redaction, email threading, and review protocols. Proactively resolve ambiguities to avoid disputes later in the litigation.

3. Consistency Across Sources of ESI
   Courts expect consistent treatment of ESI. If you redact non-responsive content in one source, such as text messages, ensure the same approach is applied to emails or other communications—or secure a written agreement to handle them differently.

4. Collaborate Early and Often
   Engage opposing counsel early to reach agreements on ESI protocols. As Magistrate Judge Stein noted, even a simple call or email could have clarified the parties’ expectations and avoided the need for a motion to compel.

5. Understand the Data
   Effective ediscovery requires familiarity with your client’s data. Reviewing the data upfront enables you to identify challenges, anticipate disputes, and negotiate agreements that align with the realities of your case.

The Bigger Picture

As text messages become an increasingly common source of evidence, litigators must adapt their practices to address the unique challenges they present. This decision reinforces the importance of preparation, collaboration, and strategic planning in managing ESI.