United States Magistrate Judges are on the front lines of discovery disputes. That means these judges get very good at resolving arguments over electronically stored information.
Discovery fights require lawyers to explain just what ESI has been produced or withheld by a producing party. However, there is a big requirement in any ESI motion to compel: the challenging party has to show that there is data missing, not that they THINK data is missing.
In a case involving allegations of fraud, unfair competition, and other business torts over the formation of a concrete supply company and sale of concrete mixing trucks, Magistrate Judge John D. Early had to decide motions to compel over text messages and Salesforce data. Milne v. ProAll Int’l Mfg., Inc., No. 8:23-cv-02212-JVS-JDEx, 2025 U.S. Dist. LEXIS 90166 (C.D. Cal. May 12, 2025).
Just like mixing concrete, a discovery dispute can turn into an oatmeal like mass that lawyers can get stuck in. This is more than just sticky; it can solidify into an anchor.
Dispute Over Text Messages
The Defendants in two separate requests for production sought communications concerning concrete mixer truck weight issues and state laws about weight restrictions. Milne, at *5-6.
The Plaintiffs produced text messages responsive to the Defendants’ requests for production.
The Defendants challenged the production. They claimed the text messages were not produced in a usable format. They alleged the messages were filtered, edited, and conversations removed. Milne, at *6.
The Defendants also claimed the text messages were not produced with usable metadata in violation of an ESI Protocol agreement. Id.
All of the Defendants’ claims amounted to the contention the Plaintiffs did not conduct an adequate search for ESI. Id.
The Plaintiffs countered there was an active crack across Defendants’ claims: All responsive text messages were produced. The Plaintiffs used an IT professional to export text messages with metadata that was defined in the ESI Protocol. Moreover, the Plaintiffs denied they edited the text messages.
The Defendants’ rebutted that the Plaintiffs had earlier stated they had “manually separated” text threads. The Plaintiffs responded that the Defendants did not show any relevant metadata was missing. Moreover, the Plaintiff had produced text messages in the same format without any challenges for months. Milne, at *6-7.
Case law holds that a challenging party “believing” that the producing party had not complied with a request for production is not enough to grant a motion to compel. There must be some evidence that the producing party is withholding records. See, Grossman v. Directors Guild of Am., Inc., 2018 U.S. Dist. LEXIS 227227, at *5 (C.D. Cal. Aug. 22, 2018) (citing Unilin Beheer B.V. v. NSL Trading Corp., 2015 U.S. Dist. LEXIS 192143, at *5 (C.D. Cal. Feb. 27, 2015); Ogden v. Bumble Bee Foods, LLC, 292 F.R.D. 620, 628 (N.D. Cal. 2013).
Judge Early had the yeoman’s task to judicially grade the uneven arguments. First, an ESI Protocol is an agreement between the parties, not a court order. Second, the Defendants did not show the Plaintiffs failed to meet the production requirements of Federal Rule of Civil Procedure Rule 34(b)(2)(E). Simply suspecting there is more ESI does not mean there is justification to grant a motion to compel. Milne, at *6-7.
Production of Salesforce Data
The Plaintiffs produced Salesforce data in response to a RFP. The Defendants [understandably] wanted to know why the produced data lacked pricing information for over a year. A related question was why the Salesforce subscription was canceled before the Plaintiff filed the lawsuit. Milne, at *8.
The Court did not order the production of any additional discovery, because the responsive Salesforce information had been produced. However, the questions that the Defendants were asking could be the subject of additional discovery. Milne, at *8-9. Propounding special interrogatories, requests for production, and requests for admission, would all be a good way to find the answers to the Defendants’ questions.
Bow Tie Thoughts
A Court can’t order information to be produced that does not exist. Moreover, believing there should be more ESI does not make it true. However, if there is a mystery about who did what, when it happened, where it occurred, and how it was done, these questions are fair game for written discovery. A deposition of the person most knowledgeable is another way to drill down to answers on the factual questions.
Texting is an extremely common form of communication. Texting is not limited to the basic features on a phone, but can include different messaging apps. Requesting these communications should be done as a matter of course given the many options for texting.
Producing text messages can get wild fast. There are situations where a party using an iPhone can download their text message history. This history can be between a specific individual over a defined date range. This export can be a PDF with hundreds of pages with the text message history in chronological order. There are other “self-help” apps that can export text messages as PDFs. Those apps make sense in small claims cases with a handful of text messages. That said, those strategies are not advisable for cases with high stakes and significant dollar value.
A computer forensic expert is strongly preferred for collecting text messages. There are multiple options for collection and export for production of text messages, which will impact how those messages are reviewed. Can one big PDF work? In some cases, yes. In other cases, no. Imagine needing a video and all that was produced was a PDF. Motion practice would follow if a party refused to produce a video.
Consider the needs of a lawsuit in reviewing text messages. What do you need for depositions? What do you need for motions? What will be trial exhibits? The smart approach is for text messages to be collected by a forensic expert. Text messages should be exported for review in an eDiscovery application for responding to discovery and case preparation.