Extract from StreemView’s article “Navigating the Challenges of Modern ESI: Why We Need a Scalpel, Not a Hammer”
In today’s legal landscape, where electronically stored information (ESI) shapes the foundation of many cases, text messages and chat data have become critical sources of evidence. However, their inclusion in discovery processes has also highlighted significant challenges—particularly when it comes to managing relevance, sensitivity, and the practical realities of modern communication.
A recent case, We the Protesters, Inc. v. Sinyangwe, underscores the limitations of existing methods for handling text messages in litigation and the urgent need for innovative solutions. This case illustrates why the status quo of reviewing short form communication in a quasi-document fashion with 24-hour transcripts fails to meet the nuanced demands of eDiscovery in today’s world.
The Case: An ESI Lesson
In We the Protesters, Magistrate Judge Gary Stein addressed a discovery dispute involving text messages. The plaintiffs had redacted portions of text message chains for relevance, while the defendants produced unredacted chains. Despite an agreement to produce messages identified by search terms, along with the accompanying 24-hour period’s messages, the plaintiffs’ redactions of non-responsive messages created contention. The Court’s decision was clear: absent explicit agreement, redactions for relevance are impermissible.
