Exploring challenges with the discovery of text messages in federal cases through the lens of the Federal Rules of Civil Procedure and the Stored Communications Act, 18 U.S.C. ss. 2701-11.

• Author: Secord, Erin Marie
• Position: Section - Section

1. INTRODUCTION

   Abco, Inc. ("Abco") is suing Allen Dean ("Dean") in United States District Court for misappropriation of trade secrets based on text messages that Dean sent to Abco's lead competitor, Banes, Inc. ("Banes"). Dean exchanged sensitive information with Banes employees on his company-owned cell phone on nearly a dozen occasions. Dean's counsel moved to enjoin both Banes' and Abco's requests for text message data based on the Stored Communications Act ("SCA") and his Fourth Amendment rights. Dean's cellular service provider, Sprintel, Inc., refuses to release any of the text message data in response to Banes' and Abco's discovery requests. Both Abco and Banes have filed motions to compel release of the text message data based on the Federal Rules of Civil Procedure ("Rules"); the text message data is critical to all parties' claims.

   This hypothetical case illustrates the complex party dynamics in the discovery of text messages and pager data. This note explores federal civil cases with similar text message and pager data discovery issues with a focus on the interplay between constitutional claims, federal law, and the Rules.

   In 2009, as compared to twenty years ago, almost all stored information and communications are electronic; this shift complicates the scope of electronic discovery. (1) Widely accepted yet vague standards determine discovery rules for electronically stored data such as the raw text message data from cell phones and pagers. (2) Fourth Amendment challenges are common in electronic discovery disputes and the criteria for determining the permissibility of certain types of electronic discovery are laid out in a handful of federal cases. (3) Though courts and legislatures have provided a modicum of guidance on issues of electronic discovery, many ambiguities remain. (4)

   Text messages (5) are a relatively new application area for the Rules, and thus few courts have explicitly defined the standards for producing text messages. (6) The Rules were revised in 2006 to provide courts with more direction on issues of electronic discovery including metadata and electronic media that are dramatically altering the landscape of electronic discovery. (7) Among other goals, the revisions to the Rules sought to specifically address both printed and electronic media. (8) Increasingly, accessibility and availability of electronic information have become the central grounds for objections to discovery requests. (9) Moreover, the rapid evolution of electronic communication and retrieval methods has revealed new frontiers of discovery, such as text messages and pager data. (10)

   This note argues that advances in technology increasingly require judges to craft new approaches to discovery issues regarding text message and pager data, and that judges often inject a great deal of public policy reasoning into their holdings. (11) Rules 26, 34, and 45 emphasize a pragmatic, liberal approach to discovery, yet these rules alone are inadequate to create consistent electronic discovery practices. (12) Furthermore, the SCA (13) adds another level of complexity to text message discoverability that exacerbates case law inconsistencies because of its vague standards for electronic communication systems ("ECS") and remote computing services ("RCS"). (14) These hazy layers of discovery rules and federal statutes have created a patch-work of precedent that is often too fact-specific to provide guidance for future cases. (15) Ultimately, the jurisprudence regarding the discoverability of text messages will likely become more cohesive as new cases emerge to clarify the myriad ambiguities that currently plague this area of law. (16)

2. HISTORY

   Though many of the Rules are relevant to the discovery of electronic information, Rules 26, 34, and 45 specifically apply to electronic discovery issues. (17) Rule 26(b)(1) defines the scope of discovery and provides broad standards for courts granting discovery motions. (18) Some of the impetuses in amending the Rules in 2006 were to increase accessibility, to lower the cost of discovering electronic materials, and to clarify ambiguities with respect to privilege and waiver. (19) Generally, Rule 26 gives trial courts substantial latitude in deciding whether a discovery request constitutes an undue burden that would justify non-production. (20) Rule 26 also lays out the general interpretative approach to other Rules, which were amended in 2006, in part to address the legal community's imploration for guidance. (21) Rule 34 provides specific guidance factors that a court must employ when adjudicating electronic discovery disputes. (22) This rule requires the responding party to search and produce electronic information in some form, but does not necessarily allow the requesting party to conduct the actual search of the relevant data. (23) Moreover, the complexity of electronic discovery issues and the interplay between Rules 26 and 34 have incited some courts to craft novel responses to a requesting party's motion to compel discovery, such as allowing a qualified third party to inspect the data. (24) Many courts have declined to accept the premise that requests for electronic data constitute an unreasonable burden on the producing party and have required each party to substantiate its claims. (25) Determining the respective burden on each party in producing electronic materials, such as text messages and pager data, is highly dependent on the specific facts of each case, resulting in wide variability among the federal courts. (26)

   Rule 45(a)(1)(C) specifically addresses third party subpoenas for the production of electronic materials and applies to both non-electronic and electronic information. (27) Though some federal courts have held that electronic and hard copies of documents are equally discoverable, Fourth Amendment privacy concerns abound. (28) Other federal courts have taken markedly different approaches, including altering the burden of proof required for a party objecting to an electronic discovery request. (29) Though the amended Rules sought to avoid such inconsistencies, some have observed the inherent electronic discovery disparities among circuits. (30)

   In addition to the Rules, the SCA, which was enacted as a revision to the Electronic Communications Privacy Act of 1986,31 provides specific protections for parties seeking to prevent the discovery of electronic materials. (32) The SCA prohibits electronic service providers from releasing the contents of electronic communications unless the communications fall into narrow categories and meet specific consent requirements. (33) Specifically, the SCA balances an individual's reasonable expectation of privacy against the legitimate public need for the disclosure of information such as in a criminal investigation. (34) The SCA often plays a role in employment cases where an electronic service provider is accused of wrongfully divulging electronically stored information and incurs criminal or civil liability. (35) Some observers have argued that case law has done little to clarify the poorly drafted, ambiguous provisions of the SCA. (36)

   The SCA adds precision to its rules and terminology by dividing electronic communications into two types: 1) electronic communications systems (ECS) such as radio and computer devices for active communication; and 2) remote computing services (RCS) that process and store electronic communications. (37) One of the first steps in applying the SCA is to classify an electronic communication based on its functional use as an ECS, an RCS, or neither. (38) The SCA's definitions are by no means bright line, and therefore determining the type of communication system under the statute is often difficult. (39) Furthermore, the liberal discovery approach of the Rules and SCA adds another level of complexity to electronic discovery standards. (40)

   After classifying communication as an ECS or an RCS under the SCA, a court must then determine whether a service provider can release the communications to a third party. (41) If a communication is an active communication device (ECS) rather than mere storage (RCS), then the provider must acquire the lawful consent of both the subscriber and the intended recipient to release the electronic information. (42) If the provider merely stores electronic information, the service is considered an RCS and the provider can lawfully release the information if either the sender or the intended recipient consents. (43) Thus, the standard for releasing RCS information is less stringent than the ECS release requirements; this difference is often at the heart of disputes regarding the release and discovery of such electronic communications. (44) Though these standards may appear relatively straightforward, they are complicated by several exceptions to the SCA, which result in further ambiguity and litigation. (45)

   The first broad exception allows a service provider to release stored electronic communications, such as RCS data, to an employee or to an individual who is incidentally or institutionally authorized to view them. (46) The second SCA exception permits the service provider to release stored information if to do so is in the provider's normal course of business. (47) The SCA also includes several exceptions for valid warrants and administrative subpoenas. (48) These release requirements depend on the duration of the information storage. (49) If a service provider stores text message data for six months or more, a government entity can utilize additional means of release authorization, including administrative subpoenas or court orders. (50) Finally, if the service provider stores text message or pager information about the commission of a crime or an impending emergency involving death or serious injury, the provider may divulge the information regardless of consent. (51) A service provider may assert these SCA exceptions as defenses to the claims for the...