Producing Text Messages in Discovery: From the Phone to a Bates Number

A request for text messages just landed, and the evidence is a phone in your client’s pocket. Producing text messages in discovery means turning that phone into a production that is complete for the requested scope, faithful to the source, numbered for citation and backed by a written response that holds up to a deficiency letter. Screenshots and a cover email rarely get you there.

Below is a six-step workflow for the responding side, from reading the request to supplementing the production, followed by the mistakes that commonly force a re-production. Rule references are to the Federal Rules of Civil Procedure; state rules usually track the same concepts with different numbering and deadlines.

What does a defensible text message production need to show?

It needs to show that the messages are complete for the agreed scope, unchanged from the source and traceable back to it. In practice that means:

• Both sides of each responsive thread within the date range and participants requested
• Date, time and a stated time zone for every message, plus sender and recipient identifiers
• Attachments, linked to the messages that carried them
• A Bates number on every page and an entry in the production log
• A written response stating the form used, any objections and whether anything is withheld
• A record of how, when and from what source the messages were collected

Step 1: Read the request and settle the form

Start with the definitions, date ranges, participants and any form-of-production instruction. Under Rule 34(b)(2)(A) the written response is generally due 30 days after service, unless the parties stipulate or the court orders otherwise, and state deadlines vary.

If the request specifies a form you cannot produce, or one you object to, Rule 34(b)(2)(D) requires you to state the objection and the form you intend to use. If no form was specified, you must still state the form you will use. Raise format questions early, ideally at the meet-and-confer, instead of discovering the disagreement after production. Our comparison of PDF, native and load file production formats explains the trade-offs.

Step 2: How do you collect text messages from a client’s phone?

Export them from the device or a backup, log the export and hash it on arrival. Collection by screenshot is a last resort, not a method.

For each export, record the device, account, tool, settings, date and who ran it, and keep the original file untouched. If a device was lost and screenshots are all that remain, document that in the collection log now; the written response will need to say it later.

When messages are already gone

If the client deleted a thread or replaced a phone without a backup, find out before you respond, not after. Check every place a copy might survive: a computer or cloud backup, a tablet signed in to the same account, a synced desktop app, or the other participant’s phone. Record what was lost, when and how, and bring it to the supervising attorney immediately, because the written response must be accurate and the loss may need to be addressed with the other side. Our article on spoliation of text messages covers how courts approach lost ESI.

Step 3: Normalize, deduplicate and scope

Raw exports overlap and disagree. Before anyone reviews, turn them into one clean set:

1. Merge sources. Phone, backup and cloud copies of the same thread should become one thread, with duplicates removed so each message appears once.
2. Normalize time. Convert timestamps to a single time zone and note it. Watch daylight saving changes that move messages across midnight.
3. Apply the requested scope. Filter to the date ranges and participants in the request, and write down every filter you applied.
4. Choose a unit. Decide whether each produced document is a whole thread, a thread per day or a thread per month, and agree on it with the other side if you can. See deduplication and threading for message reviews.

A tool like Message Extractor handles much of this step: it auto-detects formats such as iMazing CSV or Excel, SMS Backup & Restore XML and WhatsApp exports, merges duplicates into one thread model and applies date and participant filters.

Step 4: Review for responsiveness, privilege and privacy

Review whole threads in context, and document every decision to withhold or redact.

• Responsiveness. Code by thread and by message. Producing isolated messages without the surrounding exchange often invites a cherry-picking dispute, so consider producing reasonable context.
• Privilege. Messages with counsel and counsel’s staff are the usual candidates. Withheld items generally need a log under Rule 26(b)(5)(A) unless the parties have agreed otherwise; see the privilege log guide.
• Privacy. Unrelated third-party information, details about children, account numbers and medical information may call for redaction or a confidentiality designation under a protective order.
• Withholding statement. Rule 34(b)(2)(C) requires any objection to state whether responsive materials are being withheld on that basis.

Step 5: Format, number and fingerprint the production

Render the reviewed set into a paginated, chronological log and number every page. A typical log shows sender, recipient, date, time and channel for each message, places attachment thumbnails inline with full-size versions in an appendix, and opens with an index of threads and Bates ranges. Use one consistent prefix and never reuse a number.

If the parties agreed to produce the structured export alongside the log, produce it as a separate, numbered item. Record a hash of each production file and include a source manifest that lists every original export and its hash, so the other side can trace any page back to its source.

Step 6: Serve the response and keep supplementing

The production is only half of the response. For each request, the written response states whether you will produce, the specific grounds for any objection, the form used and whether anything is withheld. Under Rule 26(g), the attorney’s signature certifies the response was made after a reasonable inquiry.

Keep a production log with the Bates range, date served, recipients and delivery method. Rule 26(e) requires timely supplementation when a response is incomplete, so a newly found phone, a backup or a missed thread means a supplemental production with a fresh Bates range and an updated response.

What goes wrong in text message productions?

Many re-productions trace back to a handful of avoidable mistakes:

Privilege calls, redactions and objections are attorney decisions. Paralegals and staff should route them to the supervising attorney, and when a matter sits in a family, housing or state trial court with its own deadlines and forms, confirm local practice with counsel licensed there.