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Motion to Compel Text Messages Denied for Untimely Filing after Discovery End Date

Posted on March 27th, 2017

person touching mobile deviceIn Healthwerks, Inc. et. al. v. Stryker Spine, et. al., Case No. 14-93 (E.D. Wisc., Mar. 6, 2017), Plaintiffs sought declaratory judgment regarding two exclusive agency agreements entered into with Defendant Stryker.

One month before the scheduled March 2016 trial, Plaintiffs and Third Party Defendants filed a Motion to Compel text messages from Defendant Stryker. According to the Motion, Stryker had produced 21 text messages from a records custodian who had not worked for Stryker before the lawsuit. Stryker then informed the Movants that it had not searched any other employees’ phones for relevant text messages, despite the fact that Stryker had never objected to their demand to produce them. Stryker resisted producing the messages without a court order. Although Stryker had produced tens of thousands of pages over the course of discovery, Movants argued that the format did not permit them to search for text messages. Further, Movants argued that when asked for more information, Stryker ignored the requests and simply demanded responses to its own discovery requests.

Plaintiffs’ request for production asked for “documents” but defined the word to include “computer stored or generated” things and “any written or oral communications of any kind.” The requests also specified that documents also includes data or information in the electronic or magnetic form, and ESI should be produced as TIFFs with a load file containing a path to the OCR.

Stryker argued that Movants filed their Motion after discovery had been closed for six months and on the eve of trial, not even seeking to meet and confer until April 2016. Stryker did offer to consider the request if Movants narrowed the timeframe and topics.

The court noted that Plaintiffs sent the requests in December 2014, and after bickering for nearly two years, Movants did not file a Motion to Compel until six months after the discovery end date. Based on the timeliness issue, the court denied the Motion.

ILS – Plaintiff eDiscovery Experts

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