eDiscovery Daily Blog

• September 12, 2018

In Gould v. Farmers Insurance Exchange, No. 4:17 CV 2305 RWS (E.D. Mo. Aug. 30, 2018), Missouri District Judge Rodney W. Sippel granted the plaintiff’s motion to compel two non-party Farmers Insurance agents to comply with subpoenas and produce documents pertaining to text messages that they allegedly sent to potential customers, rejecting the agents’ argument that compliance with the subpoenas would violate their Fifth Amendment right against compelled, self-incriminating testimony.

Case Background

In this Telephone Consumer Protection Act (TCPA) case, the plaintiff alleged that, at the direction of the defendant insurance companies, non-party Farmers Insurance agents James Lohse and Joe Ridgway sent text messages to her without her consent, in violation of the TCPA. The plaintiff sought to represent similarly situated plaintiffs who received messages without their consent marketing certain Farmers Insurance products.

To obtain information on potential plaintiffs and the alleged TCPA violations generally, the plaintiff served subpoenas on the non-party agents, which requested that the agents produce phone numbers of potential customers to which text messages were sent; the content of those text messages; any contracts, correspondence, invoices, and payment records the agents have with other entities that facilitated the alleged spam texts or provided the potential customers’ numbers; documents concerning any purchase of an insurance policy by the recipients of these texts; and any documents reflecting that the recipients of these texts consented to receive those messages.

The non-party agents objected and refused to produce documents responsive to these requests, initially arguing that such discovery was inappropriate until the parties’ resolved an initial question of consent. After the defendants’ declined to file a motion summary judgment on the issue of consent, the agents changed their objections, stating that compelling their production of the requested records would violate their Fifth Amendment Right against self-incrimination, and that the plaintiff’s requests were overly broad and burdensome. The plaintiff moved to compel the production, and the non-party agents moved for a confidentiality order.  The non-party agents argued that their answers to the plaintiff’s production requests would tend to incriminate them because the call logs in question could show a violation of 47 U.SC. § 227(b)(1).

Judge’s Ruling

Noting that the Fifth Amendment “privilege applies specifically to testimony, and not the production of documents, per se”, Judge Sippel stated that “where the documents themselves are incriminating, but their possession, control, and authenticity does not incriminate, the privilege would not apply.”  Continuing, he said:

“In this circumstance, the Agents’ mere possession, production, or authentication of call logs and other documents is not the act that would tend to incriminate them. The Fifth Amendment protection against self-incrimination accordingly does not protect against disclosure of the requested documents because of the ‘settled proposition that a person may be required to produce specific documents even though they contain incriminating assertions of fact or belief because the creation of those documents was not ‘compelled’ within the meaning of the privilege.’…The Agents also argue that Gould’s production request is overbroad and burdensome. I disagree. The documents that Gould requests all pertain to whether the Agents texted potential consumers without their consent, and if so, how they did that.”

As a result, Judge Sippel granted the plaintiff’s motion to compel and denied the non-party agents’ motion for a confidentiality order.

So, what do you think?  Should production of potentially incriminating documents be protected under the Fifth Amendment?  Please let us know if any comments you might have or if you’d like to know more about a particular topic.

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