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Text Messages from Employees’ Personal Phones May Not Be Discoverable in Litigation



By Doug Hanson

Text messages
A loss control associate for a discount retail warehouse chain claimed he was subject to racial harassment and removed from his position in retaliation for filing a charge of discrimination with the Equal Employment Opportunity Commission.  He attempted to obtain electronically stored information (“ESI”) during discovery in an effort to prove his claims of hostile work environment and racial prejudice toward African-Americans.

Included in the loss control associate’s discovery requests to the retail warehouse were text messages sent or received by various employees on their personal cell phones mentioning the loss control associate or confirming his allegations of discrimination, harassment or retaliation.  The retail warehouse objected, in part, on the basis the loss control associate’s request would require it to conduct searches of the employees’ private cell phones outside of the retail warehouse’s control.

No possession, custody or control
The court began its analysis by recognizing a litigant’s right to request documents or ESI in the opposing party’s possession, custody, or control.  The court explained a party may be deemed to have documents or ESI in its possession, custody, or control if the party has actual possession, custody, or control or has the legal right to obtain the documents on demand.

The court found the retail warehouse did not issue the cell phones to the employees, nor was there evidence the employees used the cell phones for any work-related purpose or the retail warehouse had a legal right to obtain the employee text messages on demand.  Accordingly, the court found the retail warehouse did not have text messages sent or received by the individuals on their personal cell phones within its possession, custody or control.  Therefore, the court denied the loss control associate’s discovery request.

By focusing on whether the retail warehouse had possession, custody or control of the text messages on the coworkers’ private cell phones, the court did not analyze or decide the issue of whether the retail warehouse employees had a privacy right to the text messages.  However, the court implied the text messages would have been discoverable had the loss control associate argued or presented proof the personal electronic devices were used for work related purposes.  Therefore, it is not clear from this case whether an employer would be required to produce its employees’ personal text messages when employees use their personal cell phones for work, notwithstanding any right to privacy issues.

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