e-DISCOVERY: How do you discover relevant text messages but protect privileges?

In Flagg v. City of Detroit (E.D. Mich. Mar. 20, 2008) 2008 WL 787061, the Plaintiff, alleging a lax investigation of the murder of a relative and the active concealment of material evidence related to that investigation, sought to discover text messages sent between various City employees and officials.  Defendants sought to quash subpoenas to SkyTel, and, in one Order issued March 20, 2008, the Court denied the Motion to Quash.  Instead, the Court concluded that the relevance (and resulting discoverability) of the text messages depended upon the content of each text message.   The Court then established a procedure for the review of the content of each text message.   Since a text message could theoretically be relevant, but not subject to discovery (due, for example, to a privilege), the Court determined that the review procedure had to incorporate a mechanism for resolving objections to production of each relevant text message.

On that same day, the Court issued an Order establishing the review protocol.  The Court's protocol required the defendants to PIN numbers for the pagers in question so that SkyTel would be able to produce only the text messages sent or received by those particular devices.   The Court then assigned two magistrate judges (the case-assigned magistrate judge, along with a second magistrate judge) to monitor the process of obtaining text messages, review those text messages, and make an initial finding as to whether each text message was discoverable under the standard of Fed. R. Civ. P. 26(b)(1).

The Order setting forth the protocol is included in the Acrobat.com widget embedded below:

If you do not have Flash technology installed in your browser of choice (or this new-fangled beta product from Adobe isn't ready for prime time), you can find that March 20, 2008 protocol Order here.

To hear a discussion about the Protocol Order in Flagg, visit the LegalTalkNetwork and listen to the most recent edition of The ESI Report.

[Via Stark County Law Library Blog and Electronic Discovery Law, both excellent resources]