While parties to a legal matter have an obligation to produce relevant ESI during discovery, there are limits to what production they can compel from third parties, including employees. In this case, the court found that a party, in this case a company, was not in “control” over its employees’ personal devices, even when used in connection with work-related activities, so did not have a duty to produce texts from those devices.
In this antitrust case, key players in the American pork industry are accused of price fixing for pork products. The plaintiffs moved for one of the defendants, Hormel Foods, to preserve personal cell phone data from multiple employees identified as custodians. Hormel objected on the grounds that it did not have possession, custody, or control of the personal cell phones or cell phone data of these employees, as confirmed by the company’s “Bring Your Own Device” (BYOD) policy.
When plaintiffs subpoenaed these custodians directly, the custodians responded that different personal cell phones were in use during the time period in question and that their personal cell phones were not used for work-related purposes aside from internal communications. Additionally, custodians alleged that the plaintiffs were unable to provide reasonable suspicion that relevant data would be produced, and that the searches would be “broad, burdensome, and costly.”
Due to the disagreement, the plaintiffs filed a motion to compel Hormel Foods and the cell phone custodians to search for and produce any relevant messages.
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This opinion discusses the competing “legal right” and “practical ability” tests for determining what data is within a litigation party’s “control.” The court concluded that, under either test, Hormel did not have control of its employees’ texts because the company’s BYOD policy gave it no right to access those texts.