Request to Search International Employee’s Personal Gmail Raises Questions of “Control” During E-Discovery

Owen v. Elastos Foundation

S.D.N.Y. 3/16/23 7:00

Why This Case Is Important

As employees continue to use personal devices to manage both work and personal business, it’s important that legal teams understand their clients’ data maps and investigate whether data management policies exist to address the expanding landscape of remote, international, and BYOD work practices.

Overview

In this securities case, plaintiffs brought a motion to compel production from the personal Google Gmail account of one of the defendant’s employees.

Ben Li, employee, director of operations, and board member at defendant Elastos, was the focus of the plaintiffs’ request for additional discovery. Although he was not a named defendant, Li’s Elastos company account was searched in connection with this action, with defendants producing over 13,000 documents from Li’s company account. In addition, defendants produced more than 30,000 documents from various Li sources, including his laptop, phone, and personal WeChat account that he used for Elastos business.

Discovery showed that Li received emails concerning a personal investment at his company account on two occasions and forwarded them to his personal account, and on another occasion received an email concerning Elastos business at his personal email account, which he forwarded to his company account. Defendants advised that Elastos did not have a policy that would give it control over data on its employees’ personal devices.

Plaintiffs requested the defendants search Li’s personal Google account. However, Li refused to grant access, and defendants maintained that the account was outside their possession, custody, and control.

Ruling

• Motion for Production Denied. The court denied plaintiffs’ request for access to Li’s personal Google account noting the defendants did not have a policy in place that would give Elastos control over data on the personal devices of its employees. Plaintiffs also failed to show that Li used his personal Google account to conduct Elastos business beyond the one incident where he received a business document to his personal account then promptly forwarded it to his Elastos account.
• Addressing the Question of “Control”. The court noted that the parties’ dispute presented two questions: (1) whether Li’s personal Google account was within the “control” of defendant Elastos such that Elastos could be ordered to search it and produce any relevant contents, and (2) if so, whether the discovery sought would be disproportional to the needs of the case. Plaintiffs did not address Singapore or Chinese law on the question of “control.” Therefore, the court was not willing to assume that Elastos had the same “practical ability” to coerce compliance from Li that a U.S. corporation might have.
• ”Practical Ability” Test. The court explained that documents are considered “under a party’s control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.” Plaintiffs had the burden of demonstrating that defendants had the practical ability to obtain documents from Li, and the court found that plaintiffs had not met that burden.

Legal Analysis

By, Patricia E. Antezana, Reed Smith

In addition to its “practical ability” analysis, the court considered whether Mr. Li actually used his personal Gmail account for business purposes. The court instructed that plaintiffs could renew their request if further discovery showed a justification to search the personal account. As employees may use personal accounts to conduct work in different jurisdictions, parties must consider the many nuances that might affect their discovery obligations, including choice of law factors, relevance and proportionality considerations, client policies, and employee practices regarding use of personal devices.