Drafting Requests for Production of Text Messages (With Sample Language)

If your last request for production of text messages came back as a stack of cropped screenshots with no years, no phone numbers and half of each conversation missing, the problem probably started with the request. Text message discovery rewards precise drafting: the right groundwork, a few tight definitions, requests anchored to people and dates, and an explicit form of production.

This guide walks through that drafting sequence with sample language you can adapt, then covers the objections to expect and how to follow up on a deficient response. The examples follow the Federal Rules of Civil Procedure; most states use similar concepts, but numbering, limits and family-court practice vary, so check the rules that govern your matter.

Why do text message productions so often come back as screenshots?

Usually because the request did not specify a form, and screenshots are the easiest thing a client can make. Rule 34(b)(1)(C) lets the requesting party specify the form or forms in which ESI is to be produced. If it does not, Rule 34(b)(2)(E)(ii) allows production in the form in which the data is ordinarily maintained or in a reasonably usable form, and the responding party decides what that means in the first instance.

Screenshots commonly drop the year and time zone, show contact names instead of numbers, omit attachments and make completeness impossible to verify. Specifying the form up front shifts the conversation: under Rule 34(b)(2)(D), a party that objects to the requested form must say so and state the form it intends to use instead.

What should you learn before drafting the request?

Learn which devices, numbers, apps and backups exist. Drafting blind produces requests that are either too broad to survive objection or too narrow to reach the threads that matter. Initial disclosures, a first set of interrogatories, a deposition and your own client’s phone are the usual sources.

• Every phone number used during the relevant period, and the carrier
• Each device used, and when it was acquired, replaced, reset or lost
• Messaging apps in use: SMS and iMessage, WhatsApp, Signal, Messenger, Instagram, co-parenting apps, work platforms
• Whether cloud backup or message sync is enabled
• Retention and disappearing-message settings, and when they changed
• Who else participates in relevant group chats

Which definitions do the heavy lifting?

A handful of precise definitions beats pages of boilerplate. Define what a message is, where it lives and how threads are grouped, and tie the definitions to the sources you have already identified.

Sample requests for production of text messages

Anchor each request to participants, subjects and dates. Rule 34(b)(1)(A) requires each item or category to be described with reasonable particularity, and a request for every message on a phone invites proportionality objections under Rule 26(b)(1).

Topic-based requests like No. 2 are where search terms help. Offering a short, tested list of terms in the meet-and-confer often resolves a burden objection before it is filed.

How do you specify the form of production for text messages?

Ask for a form that keeps each message’s timestamp and time zone, sender and recipient identifiers, thread association and attachments, and say how media should be handled. The common options trade off differently:

When the other side does produce a structured export, a tool like Message Extractor can normalize it into a chronological, Bates-numbered PDF log your team can review and use at a hearing. Ask how the messages were collected through an interrogatory or at the meet-and-confer, since the method affects completeness and, later, authentication under Rule 901.

Which objections should you expect, and how can you narrow them in advance?

Expect overbreadth, proportionality, privacy, control and burden objections. Draft so that each one is already partly answered.

• Overbreadth and proportionality. Named participants, subjects and dates do most of the work. Our guide to proportionality in ESI discovery covers the Rule 26(b)(1) factors.
• Privacy. Offer a protective order under Rule 26(c) or confidentiality designations, and agree that unrelated third-party content can be redacted with a log. Take particular care with information about children.
• Possession, custody or control. Messages synced to a cloud account the party controls are generally within reach. Carriers are rarely a substitute; see subpoenaing phone records for what they keep.
• Deleted messages. A responding party may argue that recovering deleted data is not reasonably accessible under Rule 26(b)(2)(B). Courts can order it for good cause, often with conditions and a neutral examiner.

What do you do when the production is deficient?

Compare the production with your client’s side, document the gaps precisely and send a specific deficiency letter before any motion. Signs of a deficient text production include:

• Only one side of a conversation appears
• Threads start or stop abruptly, or date ranges have gaps
• Messages refer to photos or files that were not produced
• Years, time zones or phone numbers are missing
• Screenshots are cropped or out of order
• No statement of whether anything was withheld, as Rule 34(b)(2)(C) requires
• A different form than requested, with no objection stated

If conferring does not resolve it, a federal motion to compel under Rule 37(a) must include a certification of a good-faith attempt to confer. Strategic calls, such as how hard to push or whether to seek a device examination, belong to the attorney on the matter, and family and housing courts often handle these disputes differently from the federal model, so confirm local practice with counsel licensed in that jurisdiction.