When “Justified Suspicion” Becomes Proof: Court Orders ESI Collection from Officials’ Personal Devices
Muslims on Long Island, Inc. v. Town of Oyster Bay, No. 25-cv-00428 (E.D.N.Y. Sept. 7, 2025)
Why This Alert Is Important
This follow-up to the court’s June 2025 ruling shows how discovery credibility issues can turn suspicion into justification for compelled production. Once inconsistencies emerged in witness testimony, the court found renewed grounds to order ESI searches of personal phones and email accounts under Rules 26 and 34.
Overview
In Muslims on Long Island, Inc. v. Town of Oyster Bay, a small Muslim congregation and two of its leaders claimed the Town unlawfully blocked construction of their mosque, violating federal and state protections for religious exercise. Earlier in June 2025, the Court denied a motion to compel searches of Planning Advisory Board (PAB) members’ personal devices, finding plaintiffs’ belief that relevant messages might exist there to be speculative. At that stage, the PAB members had sworn that they “did not use personal devices for Town-related matters,” and that they lacked even each other’s cell numbers.
By midsummer, depositions told a different story. Several PAB members contradicted those sworn declarations. One testified that he “received substantive application materials at [his] personal email address,” not merely scheduling notices. Another admitted to “possibly having received emails on his personal account regarding MOLI’s application,” yet conceded he “did not take any affirmative steps to determine whether additional emails on his personal devices existed.” A third confirmed receiving “an email about the substance of an application before the [PAB]” to his non-Town address. These admissions, combined with acknowledgments that members had one another’s personal phone numbers, undermined prior denials and provided concrete evidence of Town business conducted through personal channels.
Plaintiffs renewed their motion to compel, arguing that these contradictions demonstrated both control and relevance under Rules 26 and 34.
Ruling Summary
- Control and “Justified Suspicion” Established The ruling reaffirmed that a party “is deemed to control documents that it has the legal right or the practical ability to obtain—even where those documents are in the physical possession of non-parties.” He found that the plaintiffs now provided concrete evidence in the form of contradictory deposition testimony showing use of personal accounts for Town business, satisfying the requirement for a “justified suspicion” that relevant messages existed. “The discrepancies between the submitted declarations and deposition testimony… raise the ‘suspicion’ and now justify the sought-after discovery.”
- Scope and Supervision of Review While granting the motion, the court declined to dictate technical search protocols, emphasizing that “the court is generally not in the business of instructing counsel on how to conduct its discovery review.” Instead, it required defense counsel to supervise the process and to submit sworn declarations describing search efforts, findings, and reasons for any non-production.
- Sanctions and Certification under Rule 26(g) The ruling reminded counsel that Rule 26(g) obligates attorneys to certify after a “reasonable inquiry” that their disclosure is “complete and correct.” Noncompliance carries “its own set of consequences, including mandatory sanctions,” which the court deemed sufficient to ensure diligence without appointing a special master or ordering forensic imaging.
While suspicion is not enough to cause a Court to order further discovery (especially when custodians affirm that they did not use personal phones for business emails or texts), once that non-use is called into question (by their deposition testimony), further discovery will be ordered. One wonders what counsel was thinking when it submitted the initial affidavits of non-use.Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
Data Privacy Tip
This ruling completes the arc begun with the June 2025 decision: hypothetical suspicion is not enough, but documented inconsistencies and admissions can convert speculation into proof justifying discovery.
Have questions on how the FRCP applies to e-discovery? Want to make sure your arguments align with critical rules governing e-discovery? Download Exterro’s Guide to the FRCP to get all your questions answered.
