In We the Protesters, Inc. v. Sinyangwe, No. 22 Civ. 9565 (JPC) (GS) (S.D.N.Y. Dec. 18, 2024), New York Magistrate Judge Gary Stein, noting the parties agreement regarding discovery of text messages was “less than complete”, ordered that “Plaintiffs must produce unredacted versions of non-privileged text messages” within the days for which text messages were produced, as defendants had done.

Case Discussion and Judge’s Ruling

In this case involving claims and counterclaims of copyright infringement, trademark infringement, unfair competition and more, Judge Stein opened his ruling by stating: “Before the Court is a discovery dispute that underscores the importance of counsel fashioning clear and comprehensive agreements when navigating the perils and pitfalls of electronic discovery.”

Plaintiffs and Defendants in this case negotiated an agreement with respect to the treatment of text messages in discovery, but as Judge Stein noted: “Unfortunately, their agreement was less than complete.” The parties engaged in discussions in June 2024 surrounding the production of text messages as well as emails and other electronic evidence. Counsel for Plaintiffs ultimately sent an email stating: “We are amenable to reviewing all texts in the same chain sent or received on the same day as any text that hits on any of the search terms. Please confirm whether [Defendants] are prepared to do the same.” Counsel for Defendants replied: “Confirmed.”

However, as Judge Stein noted: “What the parties’ agreement did not explicitly address is whether, in producing those same-day text chains, texts deemed irrelevant and non-responsive would be redacted or, instead, the chains needed to be produced in their entirety. Defendants understood that if the same-day period included any responsive and relevant messages, the same-day chain would be produced in its entirety without redacting non-responsive or irrelevant information…Plaintiffs understood the same-day period to define the scope of review, but not the scope of production, such that non-responsive or irrelevant messages included in a same-day text chain need not be produced and could be redacted.”

So, the Defendants produced entire same day chains while the Plaintiffs redacted messages that they deemed to be non-responsive or irrelevant. As Judge Stein stated: “That failure to communicate has now spawned the instant discovery dispute.”

In ruling on the matter, Judge Stein stated: “Here, the applicable background law is supplied by Al Thani, the leading case in this District on the issue of redactions from text messages and one authored by the district judge who presides over this very litigation. Al Thani holds squarely that “parties may not unilaterally redact otherwise discoverable” information from text messages for reasons other than privilege…Yet that is precisely what Plaintiffs did: they unilaterally redacted non-privileged text messages. It should have been clear to Plaintiffs that Al Thani operated as a default rule forbidding redactions in text message chains absent a judicial decision, or an agreement by Defendants, permitting redactions.”

Continuing, Judge Stein added: “if Plaintiffs wanted to make redactions without Defendants’ agreement, Plaintiffs needed to seek court permission to do so. Having formed an agreement with Defendants that resulted in Defendants’ production of unredacted text messages, Plaintiffs were not free to decide on their own that redactions to Plaintiffs’ production were appropriate.”

Judge Stein also referenced In re Actos Antitrust Litigation, where one party had unilaterally excluded earlier emails in an email thread from production, depriving the requesting party of metadata from those emails, stating: “Accordingly, as in Actos, the Court construes the absence of a provision in the parties’ agreement allowing redaction of text messages to preclude Plaintiffs from unilaterally making such redactions. Plaintiffs must produce unredacted versions of non-privileged text messages subject only to the limitations described below.”

Those limitations related to highly sensitive text messages, containing personal or intimate information, competitively sensitive information, political discussions or views, or other embarrassing information. For those, Judge Stein stated: “The Court therefore directs the parties to meet and confer with respect to affording special treatment to Highly Sensitive Text Messages. Such special treatment could take the form of (i) amending the existing Protective Order to permit Attorneys’ Eyes Only designation for Highly Sensitive Text Messages; (ii) arranging for opposing counsel to review Highly Sensitive Text Messages at a party’s counsel’s office to confirm for themselves that such messages are not relevant, in which case the party may redact the messages from its production; (iii) permitting redactions of particular categories of Highly Sensitive Text Messages; or (iv) such other form of treatment as counsel may reasonably agree upon. Whatever allowances are agreed to for purposes of Plaintiffs’ text message production should also be made available to Defendants for purposes of their production in the event Defendants have any Highly Sensitive Text Messages.”

So, what do you think? Are you surprised that the Court ruled Plaintiffs must produce unredacted versions of non-privileged text messages? Please share any comments you might have or if you’d like to know more about a particular topic.

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