Group Text Messages Must Be Produced by Plaintiffs, Court Rules: eDiscovery Case Law

In Kinzer v. Whole Foods Mkt., Inc., No. 20-cv-11358-ADB (D. Mass. Jan 12, 2022), Massachusetts District Judge Allison D. Burroughs denied the plaintiffs’ request to reconsider its order directing them to produce the “group text messages” between Plaintiffs and third parties, finding that “[t]he scope of discovery under the Federal Rules is broad, see Fed.R.Civ.P. 26(b)(1), and Defendant’s inquiry into Plaintiff Kinzer’s credibility is relevant and reasonably calculated to lead to the discovery of admissible evidence”.

Case Background

In this putative class action of current and former employees of the defendant over alleged Title VII violations by discriminating and retaliating against employees for wearing Black Lives Matter (“BLM”) masks and other attire, the Court had previously submitted an order on December 17, 2021, that directed the plaintiffs to produce the “group text messages” between the plaintiffs and third parties and the plaintiffs raised new arguments in a request for reconsideration. Specifically, the plaintiffs asked the Court to find that the defendant’s request for the group text messages violates Sections 7 and 8(a)(1) of the National Labor Relations Act (NLRA), and to defer, or deny, the request for discovery on that basis.


The defendants opposed the request, asserting that (1) Plaintiffs’ new charge with the Board, regardless of the outcome, seeks relief unrelated to the rulings of this Court and does not relieve them of their duty to comply with their discovery obligations in this case, and (2) there is no substantive basis for excluding the text messages from discovery.

Judge’s Ruling

In considering the request, Judge Burroughs stated: “Together, Sections 7 and 8(a)(1) of the Act provide that it is an unfair labor practice for an employer ‘to interfere with, restrain, or coerce” employees in their exercise of rights to organize and engage in ‘concerted activities for the purpose of collective bargaining or other mutual aid or protection’…Although the text messages have been described as case ‘updates’ from Plaintiff Kinzer to former co-workers,…Plaintiffs allege that they are ‘concerted activity’ within the meaning of the NLRA,…And now, only after an unfavorable ruling directing the production of the text messages,…Plaintiffs have filed a charge with the National Labor Relations Board…asking it to determine whether Defendant’s request for the production of the text messages interferes with the employees’ ‘concerted activity’ in violation of the Act…Plaintiffs also ask this Court to delay enforcement of its December 17, 2021 Order, and reserve any further findings, until the Board releases a decision.”

Continuing, Judge Burroughs stated: “Plaintiffs have cited to a series of cases in which the questioning of an employee regarding union-related activities was prohibited…Yet, Plaintiffs have provided no authority that supports their argument that the Act’s protection is applicable to a discovery dispute in federal court or to any communications regarding an existing lawsuit, and caselaw is sparse.”

She also noted: “In a similar case, Aldapa v. Fowler Packing Co. Inc., defendants moved to compel further responses at plaintiffs’ depositions regarding the identities of putative class members who met with plaintiffs’ counsel…Plaintiffs’ counsel had instructed plaintiffs not to answer these questions, citing the NLRA’s protection of ‘concerted activity.’…There, too, plaintiffs simultaneously filed a collateral unfair labor practice charge against defendants and asked the court to defer its ruling on the discovery dispute…The court declined do so, rejecting plaintiffs’ assertion of privilege and concluding that ‘[t]his matter is a matter before the district court, and not the [Board] …. Therefore, the Court has the ability to regulate the discovery before it and it is not required, nor was authority provided, which requires a federal court to adhere to decisions by the [Board] … in ascertaining privileges for use in federal court actions.’”

In denying the plaintiff’s request to reconsider the order to produce group text messages, Judge Burroughs stated: “The scope of discovery under the Federal Rules is broad, see Fed.R.Civ.P. 26(b)(1), and Defendant’s inquiry into Plaintiff Kinzer’s credibility is relevant and reasonably calculated to lead to the discovery of admissible evidence…Plaintiffs’ mere assertion that messages that provide case ‘updates’ somehow equate to ‘concerted activity efforts,’ without further evidence, is insufficient to warrant any protection given Defendant’s reasonable interest. Any speculation from Plaintiff Kinzer as to why participants to the texts may not want their names disclosed is inapposite.”

So, what do you think? Do you agree that the discovery of the group text messages is not subject to a ruling by the National Labor Relations Board?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today.

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