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In re Pork Antitrust Litig., No. 18-cv-2022 WL 972401 (D. Minn. Mar. 31, 2022)

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Reliance on an employee’s general statement that they do not use text messages for work-related matters may not be sufficient to rule out their device as a potential source of discoverable data. Relying on an employee’s memory without an accompanying thorough discussion – informed by potentially relevant technical considerations of where data may reside and a more robust effort to locate it – is unlikely to constitute a “reasonable search” for purposes of defending a response to a request for non-objectionable discovery.

Further, employers should examine their bring-your-own-device (BYOD) policies to ensure that what is or is not company data is well defined according to their business, regulatory and litigation needs. Even where a court rules that a company does not have possession, custody or control of an employee’s text messages pursuant to its BYOD policy or other factors, those text messages still may be discoverable through a subpoena to the employee directly.&nbsp;

A federal court recently ruled that a large corporate defendant cannot be compelled to produce data from the personal devices of its nonparty employees. In In re Pork Antitrust Litig., the plaintiffs alleged that the defendant company conspired to fix prices in the pork industry. The plaintiffs sought the preservation and production of data from the personal cellphones of the company’s relevant custodians. The company asserted that it did not have possession, custody or control of the employee-custodians’ personal cellphone data.

In evaluating the issue of “control,” the court noted that there is a circuit split in the interpretation of the standard. Some courts define control as the “legal right” to obtain the documents, while other courts apply the “practical ability” test. The legal-right test focuses on the entitlement or authority to obtain the documents from the owner, whereas the practical ability test focuses on the “mutuality” of the responding party’s relationship with the document owner (i.e., records that the responding party can obtain from the document owner in the normal course of business or where the document owner has an interest in the litigation and cooperated in discovery by providing documents to the responding party).

While declining to formally adopt either definition, the court found that the plaintiffs failed to demonstrate the company had control over its employees’ personally owned cellphones under either analysis because the company’s BYOD policy failed to assert ownership, control or the ability to access personal text messages. Rather, the BYOD policy defined company information as “all data that is sourced from company systems and synced between the mobile device and its servers.”&nbsp;

The court also rejected the argument that the employer-employee relationship provided the company with the practical ability to demand access to the personal cellphone data. Cognizant of the power imbalance that would make employees feel the need to comply (whether based on company loyalty or job security fears), the court distinguished between permissibly asking for documents and impermissibly demanding them. The court shared the view of the Sedona Conference guidance that “organizations should not be compelled to terminate or threaten employees who refuse to turn over their devices for preservation or collection.”

With respect to the plaintiffs’ subpoena directly to the nonparty custodians, the court refused to accept the custodians’ bald assertion that they had no work-related texts where “nothing suggests the custodians did, or were asked to do, anything beyond consulting their memories.” Even where the court acknowledged that there was only “weak” evidence that responsive texts actually exist, it could not be confident that a “reasonable search” for such texts was performed –&nbsp; custodians’ counsel should have fully explained to the custodians what kind of information could be relevant, thoroughly discussed with the custodians where such relevant data might be located, and done more “to test [the custodians’] memories” regarding text messaging, which is “by its very nature, short, quick, often reactive[] and therefore unlikely to be particularly memorable.”&nbsp;

For e-discovery practitioners, adequate diligence and supervision of efforts to identify, preserve and collect potentially relevant information, together with knowledge of the jurisdiction’s relevant case law governing “possession, custody and control” and state law equivalents, are key.

<a href="https://casetext.com/case/in-re-pork-antitrust-litig-5">Link to District Circuit Decision</a>

Court Declines To Compel Employer To Produce Data from Employees’ Personal Mobile Devices