Opinion
22-cv-04476-SI
04-05-2024
ROBLOX CORPORATION, Plaintiff, v. WOWWEE GROUP LIMITED, et al., Defendants.
ORDER RE: JOINT DISCOVERY DISPUTE REGARDING TEXT MESSAGES
RE: DKT. NO. 199
SUSAN ILLSTON UNITED STATES DISTRICT JUDGE
This joint discovery dispute concerns text message searching and production and produced text message formatting. In summer 2023, the parties agreed that text messages were an appropriate data source for WowWee. Dkt. No. 199 at 1, 4. Under the ESI Stipulation referenced by both parties in the joint discovery letter, “[f]or document custodians agreed on by the parties . . . the Producing Party will take reasonable steps to identify whether any unique responsive communications are located on any mobile devices in the possession, custody, or control of the Producing Party.” Dkt. No. 76 at 14. The ESI Stipulation further requires that the “Producing Party will review the following sources of information on a cell phone used for work purposes, to the extent reasonably available, to identify unique, responsive, and discoverable information.” Id. Text messages are one listed source of information. Id. at 14-15.
I. Text Message Searching and Production
Roblox asserts that in a January 2024 conferral, WowWee confirmed for the first time that it did not search across all of its custodians' text messages. Dkt. No. 199 at 1. According to Roblox, on March 2, 2024, “over a month after WowWee represented that it had forensically imaged and searched at least Ms. Wiseman's text messages, WowWee produced over 608 additional Wiseman text messages.” Id. Roblox claims that WowWee still refuses to search across its other custodians' text messages and that its obligation to include its seven custodians' text messages in searches for responsive information was triggered multiple times, which Roblox lists. Id. at 2. In sum, Roblox contends that “the record is clear that WowWee's custodians texted for work purposes to discuss highly relevant, responsive topics [and] WowWee should not be permitted to refuse to search across those text messages for responsive discovery.” Id.
WowWee asserts that Roblox conducted depositions of WowWee witness over four months ago and “elicited testimony it now claims supports its position,” but did not move the Court for WowWee to produce text message from every custodian in October 2023. Id. In the portion of the October 20, 2023 joint discovery dispute letter concerning text messages, Roblox asserted that “despite Ms. Wiseman testifying that she regularly texts family members to discuss work- specifically, Andrew Yanofsky and Michael Yanofsky-Defendants have failed to produce a single text message between just Ms. Wiseman, Andrew Yanofsky, and/or Michael Yanofsky.” Dkt. No. 129 at 10. The Court ordered WowWee “to determine whether the Dolls were discussed between Ms. Wiseman and the Yanofskys over a group chat that has not yet been checked, and to produce the additional responsive text messages related to the Dolls.” Dkt. No. 152 at 11-12. WowWee asserts that it promptly complied with this Court order. Dkt. No. 199 at 3. WowWee also asserts that Roblox has since filed numerous additional discovery letters, never raising the issue, and that raising the issue now, long after discovery has closed and weeks before dispositive motions are due, is overdue and in bad faith. Id. WowWee also “disagrees that the documents cited by Roblox show that the custodians are likely to have ‘unique, responsive text messages'” that have not already been produced. Id. at 5.
WowWee further contends that it has complied with the ESI Stipulation by first investigating whether its custodians used text messaging for work purposes, and then investigating “whether those custodians would be likely to have unique responsive communications on their mobile devices.” Id. at 4. WowWee indicates it produced responsive, non-privileged text messages located on the mobile devices of Sydney Wiseman and Jessica Kalichman. Id. WowWee further contends that when Roblox “most recently raised the text message issue, WowWee conducted a follow-up investigation to determine whether any of WowWee's remaining document custodians were likely to have unique, responsive text messages.” Id. at 4-5. WowWee then “confirmed that Richard Yanofsky does not have unique, responsive, non-privileged text messages, and that Michael and Andrew Yanofsky had a handful of text communications relating to My Avastars that, while duplicative and overlapping with their email communications, had not been produced as text messages by any other custodian.” Id. at 5. WowWee indicates that it is collecting these messages and will produce them. Id.
WowWee asserts that Adam Fairless left WowWee in 2022 and his text messages are not within WowWee's possession, custody, or control. Dkt. No. 199 at 4.
In response to WowWee's contention that Roblox waived this issue by not raising it earlier, Roblox contends that it “reasonably relied on WowWee's representation that it had collected text messages as a data source, and then repeatedly raised WowWee's failure to produce text messages on October 6, October 22, and December 22, 2023, as it became more apparent that WowWee's production was incomplete.” Id. at 2-3. Roblox further contends that it “had no idea how widespread the issue was until WowWee's January 2024 production, and its subsequent confirmation that it did not (and would not) search across all custodians' text messages.” Id. at 3.
The Court agrees with WowWee that Roblox did not timely raise this dispute. Even based on Roblox's representations, it appears the alleged issue about text message production could have been raised months earlier. Fact discovery closed on November 15, 2023. Unlike other discovery disputes this Court has addressed post-the close of fact discovery, this dispute is not in response to prior Court orders. Additionally, based on the representations in the joint letter, it is not clear to the Court that WowWee has failed to comply with the ESI Stipulation. That being said, to the extent WowWee has not already done so, WowWee must complete its production of all unique, responsive, non-privileged text messages located on its custodians' cell phones used for work purposes within WowWee's possession, custody, or control. See Dkt. No. 76 at 14.
II. Text Message Formatting
In the October 20, 2023 joint discovery dispute letter, Roblox raised concerns about the format of WowWee's text message production, asserting that the messages were produced with a single message / sentence per page, making it impossible to determine what each message was responding to. Dkt. No. 129 at 10. The Court noted that it did not have the relevant documents and testimony needed to resolve the dispute. Dkt. No. 152 at 12. Roblox was directed to “provide the Court with the referenced documents and testimony if Roblox still requests the Court resolve this dispute.” Id. WowWee was directed to “specify how text message are kept in the ordinary course of business.” Id. Neither party did as directed. See Dkt. No. 184. Rule 34(b)(2)(E)(ii) requires parties to produce electronically stored information “in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms” if a request for electronically stored information does not specify the form.
Roblox now re-raises its concerns about text message formatting, asserting that “WowWee produced a single text message per page, not in chronological order, and without any surrounding context.” Dkt. No. 199 at 3. Roblox asks the Court to order WowWee “to produce all responsive text messages in a format that preserves the integrity of the threads of communication reflected in the text messages.” Id. Roblox suggests the use of document review platforms such as Relativity to aggregate messages to preserve their thread relationships, or the production of screenshots for shorter threads. Id.
WowWee contends that its text message production complies with Rule 34(b)(2)(E). Id. at 5. WowWee further asserts that on January 16, 2024 Roblox requested WowWee identify how it keeps text messages in the regular course of business and WowWee's counsel responded on January 19, 2024 explaining that its productions resulted from the forensic imaging process undertaken for Ms. Wiseman's phone. Id. WowWee asserts that Roblox responded on February 6, 2024 complaining that WowWee must re-produce over 2200 text messages as screenshots. Id. WowWee contends that Roblox's suggestion of aggregating messages using document review platforms was raised for the first time on March 6, 2024. Id. WowWee further contends that it produced not only responsive texts, but also surrounding texts showing context. Id.
The Court finds this dispute untimely and declines to rule on it on this basis. Neither party responded as directed to the Court's December 4, 2023 order indicating more information was needed to resolve the dispute. See Dkt. No. 152 at 12. No additional documentation or responses were provided regarding text messages in the parties' joint submission of additional documents on December 19, 2023 in response to the December 4, 2023 order, which the Court interpreted to mean that Court intervention in the text messaging formatting dispute was no longer needed. The Court does not find it appropriate to require substantial re-formatting of text messages months after the close of fact discovery given that the text messages it has seen from WowWee in other discovery disputes include the sender, recipient, time, and date, which courts have suggested is sufficient. See, e.g., Henderson v. Chicago Cubs Baseball Club, LLC, No. 5:17-CV-02366-SVW-SK, 2018 WL 3326684, at *1 (CD. Cal. June 14, 2018) (ordering a party to produce text messages “in a form that shows the sender, recipient, time, and date the messages were sent”).
III. Associated Administrative Sealing Motion
Roblox concurrently submitted an administrative motion to consider whether another party's material should be sealed pursuant to Local Rule 79-5(f). Dkt. No. 200. WowWee submitted a statement in response requesting that the yellow highlighted portions of the joint discovery letter brief be sealed. Dkt. No. 203. The Court GRANTS this administrative sealing motion.
IT IS SO ORDERED.