What U Txt Can Hurt U OMG!

It would appear that Detroit public officials have a real problem with text messages.  In addition to the current indictment against mayor Kwame Kilpatrick involving his alleged cover-up of text messages linking him romantically with his former chief of staff, text messages play a central role in another current case with Kilpatrick ties, and were the subject of a recent court decision that outlined how they would be disclosed.

The problems began with allegations of a 2002 party at the Kilpatrick's mansion involving exotic dancers.  When one of the dancers who claimed that she was at the party was shot to death in 2003, her family filed a $150 million lawsuit against the city.  The family claimed that the shooting was an attempt to cover up the dancer's role in the party, and further claimed that a Detroit police officer was the shooter.  The family issued two subpoenas to SkyTel, which supplied the city's text messaging devices.  The subpoenas sought text messages to and from all city officials and employees on the night of the shooting and text messages from a list of 34 city officials for certain periods between 2002 and 2007.  The court allowed discovery of the text messages from the night of the shooting, but narrowed the second request.

The court issued an order on March 20, 2008 setting forth a procedure for discovery of the text messages.  The procedure seems well-reasoned, and strikes a sensible balance between the family's right to access information relevant to its claim, as well as the city's interest in maintaining evidentiary privileges and protecting confidentiality in what is, obviously, a very sensitive matter.

The court's order sets forth the following steps:

1.  The city must provide Skytel with the PIN number used by every city employee so that Skytel can access the accounts.

2.  Next, the text messages will be turned over to magistrate judges (on CDs, not in paper format, the court is careful to note) for review and an initial determination as to discoverability under Federal Rule of Civil Procedure 26(b)(1).  The magistrate judges will also have the authority to set reasonable limits on the scope of discovery sought.

3.  After the magistrate judges issue their initial determination as to discoverability, the city will have a chance to make any objections, which will be ruled upon by the district court judge.

4.  Any text messages that the court orders produced will be maintained subject to a stipulated protective order, and returned to Skytel at the conclusion of the case.

This sounds simple, but is sure to lead to many squabbles given the high stakes of the proceeding.  We will keep track of developments to see how the judge's procedure plays out.

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