Increasing mobile device usage for routine business – such as through text messages and mobile applications like WhatsApp – is contributing to a new developing trend in E-Discovery: broad discovery requests for businesses to collect and produce data from their employees’ mobile phones.

The proliferation of electronic communication not only makes it imperative for organizations to have mechanisms in place to capture and preserve mobile text messages, but also raises new challenges about how to protect employee privacy.  As more and more employees use their personal devices for business purposes (and vice-versa – employees using company-provided devices also for personal purposes), there is an increasing desire among employees to ensure their personal data is protected, even as the company produces other data required in discovery.

Courts have recognized this is an issue, and the law is evolving to strike a balance between the discoverability of relevant information and privacy protections from overly intrusive requests for text messages.

One notable recent case is Lawson v. Love’s Travel Stops & County Stores, Inc., Civil No. 1:17-CV-1266, 2020 WL 109654 (M.D. Pa. Jan. 9, 2020), a Fair Labor Standards Act case brought on behalf of current and former managers employed at various Love’s Travel Stops. Plaintiffs sought a complete forensic image of the company phones of over 100 employees in order to capture the text messages the employees may have sent.  The Defendant company argued that the collection and production processes would be too costly, and irrelevant and disproportionate to the needs of the case since many of the employees were “several rungs” above the plaintiffs.  Wholesale discovery of text messages would also sweep in a variety of personal information that had nothing to do with the case, and that implicated their employees’ privacy concerns.

The court declined Plaintiffs’ request for full-phone imaging, finding that “a more narrowly tailored request, supported by a more specific showing of relevance, might be appropriate.”  The court recognized that “conjectural requests for review of the text messages by as many as 100 cellphones” was unduly burdensome and costly, and that “beyond these concerns of proportionality, . . . wholesale, far reaching collection or disclosure of cellphone data could intrude upon the privacy interests of [the employees].”

The court instructed the parties to work together to tailor the scope of the request without further court involvement, emphasizing that the parties needed to strike a balance between fulfilling discovery obligations and protecting private information in text messages and similar applications.  The court noted: “we must be mindful of the fact that social media is at once both ubiquitous and often intensely personal, with persons sharing through social media, and storing on electronic media, the most intimate of personal details on a host of matters, many of which may be entirely unrelated to issues in specific litigation.”

While the court ultimately left it to the parties to craft a more tailored discovery request, this case is representative of the trend among courts toward balancing personal privacy interests in text messages against the need for discovery.  The appropriate balance will likely depend on the facts of each case, but practitioners should bear in mind that courts are willing to entertain arguments about personal privacy interests, and that such arguments may provide a useful means to protect employees from unnecessary intrusion on their personal privacy in litigation. See, e.g., Hardy v. UPS Ground Freight, Inc., 2019 WL 3290346, at *3-4 (D. Mass. July 22, 2019); Laub v. Horbaczewski, 331 F.R.D. 516 (C.D. Ca. 2019); https://www.crowelldatalaw.com/2020/01/burden-of-compliance-with-foreign-data-privacy-laws-does-not-justify-withholding-of-banking-records.

Photo of Catherine O'Rourke Catherine O'Rourke

Cathy O’Rourke is a discovery attorney in Crowell & Moring’s Washington, D.C. office, practicing in the E-Discovery & Information Management Practice.

Cathy has significant litigation and e-discovery experience in a variety of matters in state and federal courts. She has represented clients in…

Cathy O’Rourke is a discovery attorney in Crowell & Moring’s Washington, D.C. office, practicing in the E-Discovery & Information Management Practice.

Cathy has significant litigation and e-discovery experience in a variety of matters in state and federal courts. She has represented clients in various complex tort and commercial litigation matters, including national product liability class actions and consumer protection claims. Cathy has first-chair trial experience and has secured successful jury verdicts on behalf of her corporate clients.

Photo of George Carry George Carry

George D. Carry is a discovery attorney in Crowell & Moring’s Washington, D.C. office. George’s practice focuses on electronic discovery in complex commercial disputes, mergers and acquisitions, and government investigations. His experience includes counseling and representing clients in large discovery matters in federal…

George D. Carry is a discovery attorney in Crowell & Moring’s Washington, D.C. office. George’s practice focuses on electronic discovery in complex commercial disputes, mergers and acquisitions, and government investigations. His experience includes counseling and representing clients in large discovery matters in federal court, state court, and arbitration, and focuses on all aspects of electronic discovery, including large-scale data collections, document review management, technology-assisted review methods, and litigation support systems.