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Plaintiff’s Motion to Quash Subpoena of Text Messages Granted by Court: eDiscovery Case Law

In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), Mississippi Magistrate Judge S. Allan Alexander granted the plaintiff’s Motion to Quash Subpoena where the defendant subpoenaed the plaintiff’s text messages and call log records from his mobile provider.

Case Background

In this employment case, the defendant issued a subpoena to AT&T Subpoena Compliance Center for production of “[a]ny and all calls and text messages made from and received from [the plaintiff’s phone number] in the custody and control of AT&T for the dates of April 23, 2012, beginning 1:00 p.m. through May 27, 2012.” The defendants stated that the subpoena was necessary because plaintiff had avoided producing ESI that is relevant to the claims at issue and failed to maintain either the phone upon which he recorded a conversation the day of his discharge or the computer to which he later transferred the phone recording.

The plaintiff contended that the subpoena was overly broad, harassing, irrelevant, and potentially sought information protected by the attorney client privilege, as the requested text messages would undoubtedly include texts to and from his family members and possibly to and from his attorney. The plaintiff also noted that the period of time for which the text messages and calls were sought extended twenty days after the plaintiff was terminated.

Judge’s Opinion

Judge Alexander noted that the defendants “have offered no explanation for why these text messages and phone calls are relevant and has not agreed to limit the production of them in any way”. Despite the fact that the plaintiff failed to maintain the phone and computer, Judge Alexander determined that “neither of those two facts support the request for all of plaintiff’s text messages and phone calls before and for three weeks after his termination. If defendants desire to seek a spoliation instruction, they are permitted to do so, but defendants have failed to convince the undersigned that production of text messages and phone call logs will resolve any issue relating to the recorded conversation. The court will not permit irrelevant discovery that appears to be more harassing than productive.”

“Weighing the factors set out by the Fifth Circuit for quashing a subpoena, the relevance factor clearly weighs against production of the phone records”, stated Judge Alexander, finding that “the breadth of the request is entirely too wide even if a valid reason for the request had been established.” As a result, he granted the plaintiff’s request to quash the defendant’s subpoena.

So, what do you think? Was the defendants’ request overbroad? Or did they have a valid reason for the subpoena, given that the plaintiff failed to produce relevant ESI? Please share any comments you might have or if you’d like to know more about a particular topic.

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