In Burdette v. Panola County, No. 3:13CV286-MPM-SAA (N.D. Miss. February 4, 2015), the Northern District of Mississippi granted Plaintiff’s Motion to Quash Subpoena where Defendant subpoenaed Plaintiff’s text messages and call log records.
Plaintiff filed an employment lawsuit alleging unpaid wages and retaliation. Defendant served AT & T with a subpoena seeking production of Plaintiff’s call records and text messages for a period that included 20 days after Plaintiff’s termination. Defendants contended that they needed to serve the subpoena because Plaintiff had “avoided producing [relevant] ESI.”
Plaintiff objected and moved to quash the subpoena as overbroad, harassing, seeking information irrelevant to Plaintiff’s unpaid wage claims and retaliation, and possibly as violating attorney-client privilege. Reviewing the subpoena under Fifth Circuit law, the court agreed with Plaintiff and quashed the subpoena, stating that it would not “permit irrelevant discovery that appears to be more harassing than productive.” The court specifically agreed with Plaintiff that his phone calls and text messages would likely include irrelevant data about his family and possibly information protected by the attorney-client privilege. The court also agreed with Plaintiff that Defendants had not provided the court with any information reflecting the relevancy of Plaintiff’s text messages or phone calls, and that the subpoena was generally overbroad to the extent it sought information from after the termination.
Did you know? Text messages are a hot topic in eDiscovery (see ILS’s most recent newsletter regarding the duty to preserve and produce text messages). And it is no wonder – smartphone users aged 18-24 send an average of over 1,000 texts per week!