District of Massachusetts Holds Text Messages Between Plaintiffs and Third-Parties Not Protected from Discovery as Concerted Activities

The United States District Court for the District of Massachusetts has held that group text messages between plaintiffs and third parties are not protected from disclosure in discovery as “concerted activities for the purpose of collective bargaining or other mutual aid or protection” under the National Labor Relations Act, 29 U.S.C. §§ 157, 158(a)(1) (the “NLRA”).

In the course of the underlying lawsuit, Kinzer v. Whole Foods Market, the District Court directed the Plaintiffs to produce group text messages between the plaintiffs and third parties, messages the plaintiffs described as case “updates” to former co-workers.  Plaintiffs sought reconsideration of that order, after petitioning the National Labor Relations Board to determine if Whole Foods Market’s request for the messages interfered with the plaintiffs’ “concerted activity” in violation of the NLRA.

The District Court denied the motion for reconsideration. While the plaintiffs pointed to cases where questioning of employees regarding union-related activities was prohibited, none of those cases involved an assertion that the NLRA’s protections were applicable to a discovery request or dispute in federal court regarding communications about an existing lawsuit. As the Court noted, “the scope of discovery under the Federal Rules is broad…Defendant’s inquiry…is relevant and reasonably calculated to lead to the discovery of admissible evidence.”  The plaintiffs could point to no law limiting the District Court’s authority to order the communications produced in the context of discovery, and thus, the text messages were required to be produced.

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