Over the past 25 years, the emergence of electronic communications has dramatically altered the landscape of discovery. As new technologies develop and become more prevalent, the scope of what is considered appropriate or necessary in e-discovery continues to evolve. Parties can no longer rest on their discovery laurels after searching custodial emails and computers. SharePoint, Dropbox, Snapchat, WhatsApp and a bevy of other programs and mobile apps provide a fertile ground for disputes over the appropriate scope of a party’s document collection and review. In a recent transcript ruling, In re Appraisal of Kate Spade & Co., C.A. No. 2017-0714-AGB (June 21, 2018), Chancellor Andre G. Bouchard postulated whether the time has come for parties to proactively collect and search one of the most frequently used (but seldom searched) methods of electronic communications—text messages.

Background

Petitioners in this action, former stockholders of respondent Kate Spade, sought appraisal of their shares following the company’s 2017 acquisition by Coach Inc. In response to interrogatories, the company asserted that none of its custodians engaged in “substantive business communications” via text message, and that none of the four key executives negotiating the transaction (two on each side) had any prior professional, personal or social relationships with the others. Documents produced by the company, however, indicated the possible existence of relevant text messages between two of the executives.