In Lewis PR v. Murphy, Judge Kaplan quashed the plaintiff’s subpoena requesting 20 months of the defendant’s cell phone records. Judge Kaplan found that the subpoena was abusive and “stunning in its over breadth.”
The plaintiff sued the defendant for alleged breach of a restrictive covenant in an asset purchase agreement. In discovery, the plaintiff subpoenaed Verizon to produce records reflecting all telephone bills, text messages, and call data for the defendant’s personal cell phone for a period of 20 months. The defendant moved to quash the subpoena.
Judge Kaplan first disposed of the defendant’s argument that the plaintiff lacked standing, ruling that the plaintiff could to seek court-ordered protection from abusive discovery requests under Mass. R. Civ. P. 26(c).
Judge Kaplan then turned to the scope of the subpoena, which he found was impermissibly overboard. “Filing a complaint,” he wrote, “does not provide a party with license to inspect all of a person’s private communications with others for a 20 month period in hopes that it will produce some information that might be of use in a civil law suit.” Although “[a] narrowly drawn subpoena on a cell phone service or other provider of communication services could be appropriate,” that does not mean, according to Judge Kaplan, that “the filing of a lawsuit is sufficient to trump a defendant’s privacy interests in all of [the defendant’s] communications, whether or not related to a claim.”
Lewis PR v. Andrew Murphy (February 22, 2019)
Ritika Bhakhri is an associate in Nutter’s Litigation Department.
Alison C. Casey is an associate in Nutter’s Litigation Department and works with clients primarily on complex intellectual property and commercial litigation as well as labor and employment matters. Clients rely on Alison’s ...
- Senior Editor, Co-Chair, Business Litigation Practice Group