This court decision arises from a discovery dispute in a lawsuit between the former founders of Campaign Zero, a nonprofit advocating for police reform. The Plaintiffs, We the Protesters, Inc. and Stay Woke, Inc., redacted portions of their text message production, believing they were only required to produce responsive or contextually relevant messages. In contrast, the Defendants, Samuel Sinyangwe and Mapping Police Violence, Inc., provided their text messages unredacted and moved to compel Plaintiffs to do the same. The court sided with the Defendants, emphasizing the importance of clear, mutual agreements in discovery, especially with complex forms of electronic communication like text messaging.

The parties engaged in discussions in June 2024 surrounding the production of text messages as well as emails and other electronic evidence.  Counsel for Plaintiffs ultimately sent an email, that Defendants agreed to, stating: “We are amenable to reviewing all texts in the same chain sent or received on the same day as any text that hits on any of the search terms.”  What the parties’ agreement did not address is whether texts deemed irrelevant and non-responsive would be redacted.  Defendants understood that same-day chains would be produced in their entirety without redactions, but Plaintiffs understood that non-responsive or irrelevant messages in same-day chains could be redacted.

Courts differ on whether an entire text thread must be produced or whether non-relevant portions may be redacted.  In the Southern District of New York, the leading precedent (Al Thani v. Hanke) disfavors redactions for reasons other than privilege.  Here, the court relied on the reasoning in In re Actos Antitrust Litigation, stating, if Plaintiffs wanted to redact their text messages, it was incumbent upon them to negotiate an agreement to that effect with Defendants or, in the absence of an agreement, bring the issue to the Court for resolution before Defendants made their production.  The court deemed it would be unfair to allow Plaintiffs access to Defendants’ unredacted text messages while simultaneously permitting Plaintiffs to redact their own text messages.  As such, the court compelled Plaintiffs to produce their text messages unredacted.  However, the court allowed room for flexibility in handling genuinely sensitive communications. Plaintiffs were able to protect “Highly Sensitive Text Messages” through further negotiation or protective orders.

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