United States District Court, M.D. Pennsylvania
MEMORANDUM AND ORDER
C. Carlson United States Magistrate Judge
Factual and Procedural Background
case is a Fair Labor Standards Act (FLSA) collective action
brought on behalf of current and former Operations Managers
(OMs) employed at various Love's Travel Stops. (Doc. 1).
The plaintiffs allege that they were misclassified as exempt
managerial employees under the FLSA, 29 U.S.C. § 201, et
seq., and accordingly were not paid overtime as required by
federal law. (Id.)
parties are engaged in discovery in this case and have been
embroiled in a No. of discovery disputes which have required
the court's intervention. (Docs. 167-231). In order to
provide focus, clarity, and finality to this process, on
November 25, 2019, we entered an order directing the parties
to provide us with a comprehensive and complete list of their
discovery disputes by December 9, 2019. (Doc. 218). The
parties have complied with this direction, providing us with
correspondence outlining the remaining discovery disputes
that divide these litigants. (Docs. 219-223).
among these remaining discovery disputes is a disagreement
between the parties regarding the plaintiffs' demands
that the defendant should provide discovery of text messages
that pertain to the issues in this litigation that Love's
supervisors possess on company-owned cell phones. This
specific demand for discovery of defense cellphone text
messages follows a disagreement between Love's and the
plaintiffs regarding the adequacy of the plaintiffs' ESI
searches, which included searches of the stored emails and
text messages on the phones of the various Opt-In plaintiffs.
In response to this prior dispute, we denied Love's
request that we order the plaintiffs to undertake the burden
and expense of a wholesale forensic review of the Opt-Ins
cellphones. Instead, we only granted Love's limited
relief in the form of an order directing some further,
tailored ESI searches by the Opt-In plaintiffs for ESI,
including relevant cellphone text messages. (Doc. 210). We
entered this order, in part, because we were satisfied that
Love's discovery demands, which specifically referenced
text messages, had previously placed the plaintiffs on notice
that this information was being sought by the defense. (Doc.
223 at 9).
plaintiffs, in turn, now seek ESI discovery of the content of
text messages found on the company-owned cellphones of
Love's supervisors, a request that Love's opposes on
several grounds. First, Love's contends that the
plaintiffs are delinquent in making this request, having
waited until near the close of discovery before specifically
demanding production of cellphone text messages. The
plaintiffs have responded to this timeliness objection by
arguing that this text message information was sought by them
in their July 2018 requests for production of documents. We
are not entirely persuaded by this argument, since our
reading of these requests for production does not lead us to
conclude that the requests clearly placed Love's on
notice that the plaintiffs were seeking text messages.
from these timeliness issues, Love's raises concerns
regarding the relevance, scope, cost and proportionality of
this requested discovery. At the outset, Love's contends
that the plaintiffs' requests, which are framed in terms
of all text messages from company owned phones, are not bound
or defined by any considerations of factual relevance to the
issues in this litigation. We agree that no party would be
entitled to all text messages contained on an opposing
party's cellphones. Only those messages that were
relevant to the issues in this litigation would be subject to
discovery and disclosure.
Love's notes that the scope of this request is quite
broad. According to Love's, only senior management at the
District Director or Division Manager level possess
company-owned cellphones. However, the No. of such
company-owned devices is significant and may include 100
devices. In fact, some 18 Division Directors or District
Managers oversee the work of the discovery Opt-In plaintiffs.
Thus, wholesale disclosure of text messages from all of these
devices could be a significant undertaking.
the scope of this enterprise, Love's identifies
considerable expenses associated with just the initial effort
to capture the extant text messages on these devices.
Love's contends that this data capture expense would be
approximately $1, 500 per cellphone. Thus, the cost of simply
capturing and retaining this data would be $150, 000 for all
company-owned cell phones for the 100 senior officials who
possess such phones, and up to $27, 000 for the 18 officials
who actually oversee the discovery Opt-In plaintiffs.
Moreover, this projected cost relates solely to capturing
this data. There would be additional expenses associated with
any data searches of these devices.
Love's argues that the plaintiffs have not made a
sufficient showing of relevance to secure this discovery. In
particular, Love's notes that the senior managers who
possess company-issued cellphones are several rungs above
Operations Managers in the corporate hierarchy. Therefore,
they would have little reason to communicate with or about
the daily duties of Operations Managers through text
messages. Love's bolsters its relevance argument by
observing that one Opt-In plaintiff who was deposed, Mr.
Lawson, produced no relevant text messages from his cellphone
describing his duties or other matters relating to this case.
If the actual Operations Managers possessed nothing on their
cellphones in terms of relevant text messages concerning
their duties and job classification, Love's reasons that
it is highly unlikely that a body of relevant text messages
exist on the phones of corporate officials who are far
removed from OM work or direct supervision of OMs.
given the substantial expense associated with the collection
of this data, the limited showing of relevance made here, and
the tardiness of the specific request, Love's contends
that this discovery demand does not satisfy the
proportionality principles embodied in Rule 26.
one other consideration to these concerns identified by
Love's, a factor which previously led us to deny many
aspects of Love's request for cellphone data from the
Opt-In plaintiffs and caused us to narrowly circumscribe
Love's demands for ESI from the plaintiffs. Cellphones
and cellphone technology are now a ubiquitous part of our
lives. For many, the most personal and intimate facts of
their lives are carried and saved in their personal
electronic devices. Therefore, requests for wide-ranging
discovery of cellphone contents often implicate important
privacy interests, interests which must be weighed against
the need for such disclosure.
the issues which divide the parties framed in this fashion,
we turn to the ...