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Case Law Catch-Up: New Ruling Highlights Custody Issues with Employee Text Messages

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Issues around possession, custody, and control of data have recently been highlighted in In re Pork Antitrust Litig. Specifically, this case dealt with whether parties with a bring your own device (BYOD) policy could be compelled to produce text messages from an employee’s personal phone.

The plaintiffs requested preservation and production of all communications, including text messages, related to the matter’s allegations. In response, the defendants claimed that they did not have possession, custody, or control of their employees’ personal cell phone data and therefore could not produce the ESI located on them. The plaintiffs then issued Rule 45 subpoenas to the custodians requesting the same ESI, but the recipients objected and failed to respond.

As a result, the plaintiffs filed a motion to compel production of the relevant text messages and requested that the court make a declaration that the defendants had an obligation to forensically image the text message communications on their employee’s’ personal phones, as well as issue an order instructing them to do so immediately.


Beginning with an examination of Rule 34, the court concluded that the plaintiff failed to demonstrate that the defendant did have possession, custody, or control of the data in question. Because the plaintiffs argued that the defendant’s BYOD policy meant that they had control over their employees text messages on their personal phones, the court reviewed this policy and concluded that they did not have the duty to preserve text messages from their employee’s’ personal phones because they did not own that data.

Although the BYOD policy claimed ownership over data sourced from company servers and included the right to erase employee cell phones, the policy was specifically related to an application that employees were required to install when using their personal phones for company purposes. The court concluded, “The company’s ability to wipe personal data from a personally-owned device by resetting the device to a factory floor state in order to purge company data does not give the company control-legal or practical- over that personal data.”

However, agreeing to the likely relevance of the ESI in the text messages, the court granted the motion in part and denied it in part. The custodians were compelled to “search for and produce text messages within certain parameters, and to preserve data in the event that this production, or other discovery, reveals a basis to expand the search.” The court also ordered both parties to meet and confer to agree upon how to search the devices and share the costs of doing so.

Our Analysis

This case shows that establishing who has possession, custody, and control of case data is fundamental when deciding whether or not discovery can be compelled. Part of the court’s opinion considered the practicality of compliance and found that the defendant lacked the practical ability to force its employees to produce their text messages.

Understanding how courts are examining and addressing these issues can help practitioners determine what will be expected when it comes to third party data preservation and production. When there is a question of the legal right to produce data but it is not practical or proportional to do so, even potentially relevant data may be left out of a matter. When there is doubt over whether or not a party has control of certain data, issuing a Rule 45 subpoena can be a helpful direction to take.

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