Request for Texts

Request for Texts and Other ESI Denied Due to ESI Stipulation: eDiscovery Case Law

In Latin Markets Brazil, LLC v. McArdle, et al., No. 654374/2020 (N.Y. Sup. Ct. July 14, 2023), New York Supreme Court Justice Robert R. Reed denied plaintiff’s request for texts, social media, and LinkedIn messages due to the fact that the parties entered into an ESI stipulation that prohibited disclosure of “[v]oicemail, text messages, personal phones or tablets and instant messages”.

Case Background

This case involved the plaintiff claims of misappropriation of trade secrets, breach of contract, unfair competition, tortious interference, breach of fiduciary duty, and conversion against two former employees (Mr. Mallon and Mr. McArdle) who left the plaintiff company and formed a competing company. Plaintiff alleged that over the course of document discovery, Mr. Mallon and Mr. McArdle’s breaches of contract were demonstrated by documents showing their formation of a competing company while still employed by Markets Group, their downloading of confidential databases prior to their resignations, and their transfer of said documents to personal email accounts.

Plaintiff moved to compel discovery of Mr. Mallon and Mr. McArdle’s text, social media, and LinkedIn messages for the three-month period before and after forming their competing company in July of 2020. During document production, Mr. Mallon’s emails with Markets Group clients allegedly indicated that communications were made over LinkedIn and text. Plaintiff agreed to forego production of “metadata” or the collection of defendants’ electronic devices for forensic inspection, agreeing instead to accept PDF screenshots of the responsive documents.

Plaintiff also argued that these communications were patently relevant to the prosecution of their case (to “likely reveal which clients Mr. Mallon and Mr. McArdle contacted and attempted to solicit, as well as any other discussions of improperly removing and using Markets Group confidential materials”) and were narrowly tailored to the needs of the case, as “the three-month scope of its demand is limited in nature and does not constitute a fishing expedition.”

Defendants opposed the motion to compel, arguing that the terms of the ESI stipulation prohibit disclosure. Defendants submit that plaintiff’s counsel stipulated to not request text messages in the ESI stipulation and argued that this demand is untimely given that it comes more than a year following execution of the ESI stipulation. Per defendants, the stipulation, like any contract, requires the court to adhere to its terms absent fraud, collusion, mistake, or accident. Defendants also characterized plaintiff’s request as overly expansive and speculative.

Justice’s Ruling


In responding to plaintiff’s request for texts, social media, and LinkedIn messages, Justice Reed stated: “Defendants are correct. Plaintiffs was represented by counsel and consented to a voluntary waiver of discoverable materials when it stipulated that ‘the following sources of ESI information do not warrant collection, search, review or production: (a) Voicemail, text messages, personal phones or tablets and instant messages’…Plaintiff has made no showings of fraud, duress, coercion, or mistake warranting this court overturning the stipulation. Accordingly, plaintiff’s motion to compel is denied.”

So, what do you think? Are you more surprised that the plaintiff’s request for texts, social media, and LinkedIn messages was denied or that the plaintiff agreed to the ESI stipulation in the first place? Please share any comments you might have or if you’d like to know more about a particular topic.

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  1. I’ve heard of cases where the parties agree that there’s not likely to be important ESI on mobile devices and messaging apps and agree not to pursue those to keep discovery expenses down. And sometimes that makes sense. But, in a trade secret/unfair competition case, those ESI sources are usually highly likely to contain responsive ESI. Big blunder by the plaintiff, IMO.

  2. I see that sort of boneheaded agreement now and again. It epitomizes my longtime observation that, in their drive to get something in discovery, parties too often agree to anything. It’s malpractice (or close) to agree to take phones, tablets and texts off the table in discovery, especially in a case like this one where one-on-one communications between alleged conspirators are almost certainly implicated.

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