Interesting Discovery Decision by Special Master Phil Favro

Special Master Phil Favro issued a decision in Pso-Rite Com LLC v. Thrival LLC, 2025 WL 3899841 (Dec. 23, 2025). The decision addressed disputes over discovery responses in a lawsuit over marketing of massage products.

One advantage of using Special Masters like Phil is speed.  Phil was appointed by the court on November 26, 2025.  Materials were submitted to him between December 11^th and the 18^th.  A two-hour hearing was held on December 19^th. The decision issued on December 23^rd.

• For more information on Phil, see Congratulations to Phil Favro on the Opening Favro Law PLLC (Jun. 16, 2025).
• For more information on special masters generally, please see Court Appointed ESI Discovery Supervisor for ESI Protocol (Sep. 13, 2024); Court’s Use of a Special Master to Assist EEOC in Obtaining Discovery from Defendant (Jul. 30, 2025); Court Appointed a Special Master to Negotiate ESI Protocol (Dec. 12, 2024); No More “Masters”? (Feb. 16, 2024); Mediation of Discovery Disputes by Court’s Law Clerk? (Jul. 9, 2024).

One issue in Pso-Rite turned on the form of production of text messages. Phil wrote: “The production format was PDF, with screenshots of the responsive text messages produced on approximately 80 pages of documents. The text messages did not include any metadata. Nor did they reflect sender, recipient, or date and time stamp information.”  Id. at *2. He determined:

The Special Master finds that Pso-Rite’s December 17 production of text messages is not “reasonably usable” pursuant to Federal Rule of Civil Procedure (“Rule”) 34(b)(2)(E)(ii). Producing screenshots of text messages without sender, recipient, or date and time stamp information, or related metadata, is an impermissible “document dump.”

Id. He also ordered “Pso-Rite to make forensic images of the phones belonging to [custodians] Mollohan and Lee that have discoverable text messages—i.e., electronic communications that are relevant to the claims or defenses and proportional to the needs of the case—sent or received during the relevant time period on mobile communications applications. Mobile communications applications should be construed broadly and include communications from iMessage, WhatsApp, Telegram, Facebook, Facebook Messenger, Instagram, Slack, Google Chat, and any other messaging application that Mollohan and Lee used to communicate regarding matters that are discoverable in this litigation.”  Id.

Further, the order stated:

To the extent not already completed, counsel for Pso-Rite shall conduct custodian interviews of Mollohan and Lee to determine the precise nature of the mobile communications applications Mollohan and Lee have used to discuss matters that are discoverable in this litigation. As part of the custodian interview, counsel for Pso-Rite shall inquire regarding the custodians’ possible use of ephemeral (disappearing) messaging features associated with WhatsApp and Telegram (and other messaging applications) and the automated deletion feature for iMessage. In addition, counsel for Pso-Rite should inquire as to the custodians’ practices with respect to deleting text messages, whether the custodians actually read the legal hold notice issued by their former counsel in this case, what actions the custodians took to preserve discoverable text messages, and when they began doing so.

Id. at *3.  When that was completed:

Pso-Rite must then collect those messages, search the messages for discoverable communications, and produce those communications forthwith. Pso-Rite and Thrival are encouraged to continue their efforts to cooperatively develop search terms that can be run against the collection of text messages to identify discoverable communications. Nevertheless, Pso-Rite and its counsel have an independent obligation to look for, identify, and produce responsive text messages and they should be certain to undertake good faith, reasonable efforts to discharge that obligation. Pso-Rite need not manually review all of Mollohan’s and Lee’s text messages to identify responsive information. Nevertheless, Pso-Rite must do more than just use search terms to locate relevant text messages since search terms may not hit on responsive information given that texts are replete with idioms, slang, jargon, and other contextual language. Pso-Rite should also validate the production to reasonably ensure that it includes relevant and proportional information.

Id. (emphasis added).  This holding comports with the principle that a litigant may have a duty to correct an opponent’s search terms. See Is There a Duty to “’Fess Up?” – Part II (Nov. 12, 2022).

Further, Phil addressed the context problem – what I have called the “what is a document” issue. He wrote: “Finally, the Special Master orders the parties to meet and confer regarding the production of contextual messages surrounding relevant text message strings. While certain courts have followed the procedure articulated in Lubrizol v. Corp. v. Int’l Bus. Machines Corp., the Special Master believes the parties should reach an agreement on this issue. Any procedure on which the parties agree will apply both prospectively and retrospectively to all text message productions the parties have and shall make. The parties shall report back to the Special Master by January 12, 2026 on the nature of the agreement they have reached regarding the production of contextual messages.”  Id. at *3.

This is an important issue.  See What is a “Document?”: Interior Email Omitted from Email Chain – Sanctions Follow for Lack of Candor to Court (Sep. 11, 2025); ESI Protocol Should Define “Documents” and Address Redaction Based on Irrelevancy (May 14, 2025); What is a Document? (Part III) (Apr. 4, 2022); What is a Document? (Part II) (Aug. 28, 2021);  What is a “Document?” (Aug. 17, 2021);   Sedona Conference Commentary on Discovery of Collaboration Platforms – What is a Document? (Apr. 10, 2025); What Hath Noom Wrought? (Apr. 25, 2023).

It is important to remember that:

• Fed.R.Civ.P. 34(b)(1)(C) authorizes the requesting party to “specify the form or forms in which electronically stored information is to be produced.”
• Fed.R.Civ.P. 34(b)(2)(D) states that: “The response may state an objection to a requested form for producing electronically stored information. If the responding party objects to a requested form–or if no form was specified in the request–the party must state the form or forms it intends to use.”
• Fed.R.Civ.P. 34(b)(2)(E)(ii) states that: “If a request does not specify a form for producing electronically stored information, a party must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms….”

Phil’s decision also addressed database discovery, email accounts of departed employees, advice of counsel documents and privilege logging, and directed disclosure of “a written description of its efforts to search for, identify, and produce discoverable information from its Google Workspace. The description shall offer details regarding Pso-Rite’s efforts to comply with its Rule 26(g) duty of reasonable inquiry.”