A case out of the District of Minnesota recently addressed whether a party can be compelled to produce text messages from an employee’s personal mobile device when that party has a bring your own device (BYOD) policy in place. See In re Pork Antitrust Litig., 2022 WL 972401 (D. Minn. 2022).
This class action lawsuit involves claims of price fixing. Specifically, the plaintiffs allege that the defendants – America’s largest producers of pork – conspired to limit the supply of pork, exchanged competitively sensitive information through Agri Stats, and by signaling publicly the need to cut supply, were able to fix pork prices in violation of antitrust laws.
In 2018, the plaintiffs requested Hormel, one of the defendants, preserve mobile devices of five custodians. Soon thereafter, plaintiffs served written discovery that called for, among other things, the production of all communications (including text messages) about meetings between the defendants relating to the lawsuit’s allegations. In response, Hormel stated it did not have possession, custody, or control of the custodian’s personal cell phone data. In 2019, the parties entered an ESI protocol, which included the preservation of phone records. During discovery Hormel identified 30 custodians — 13 of whom are former employees. When no text messages were forthcoming, Hormel responded again that it did not have possession, custody, or control over the relevant phones, so it could not produce those text messages and had complied with his duty to preserve under the preservation protocol and the obligations under the Federal Rules of Civil Procedure related to phones outside of its control.
Frustrated, plaintiffs proceeded by subpoena and issued Rule 45 subpoenas to all 30 of the custodians for the same information. Every recipient objected to the subpoena and failed to respond. And so, Plaintiffs wanted to image the custodians’ current phones. Given a lack of progress in negotiations to move this forward, Plaintiffs filed a motion to compel seeking to have Hormel produce the text messages within their possession, custody, or control relevant to the conspiracy claims; and asking the court for a declaration that Hormel had an obligation to image the text message content from all of the custodian’s mobile devices and cloud backups and for an order for it to do so now.
Because Hormel disputes that it has possession, custody, or control required to compel it to produce the requested information, the court’s analysis begins with Rule 34’s requirement that a party must produce relevant information that is within its possession, custody, or control. In concluding that plaintiff failed to demonstrate Hormel had possession, custody, or control of the data at issue, the court discussed both the legal right standard and the practical ability standard.
The legal right test says that if a party “has the legal right to obtain the document, then the document is within that party’s control.” The practical ability test, according to the court, says that when the moving party demonstrates the other party has the right, authority, or practical ability to obtain the documents from a non-party to the action, then the document is within that party’s control. Here, the court reviewed Hormel’s BYOD policy and concluded that Hormel did not have the legal right to obtain text messages from the custodians’ phones. Specifically, Hormel’s policy, which had been in effect since 2011 (two years after the allegations at issue began) does not give the company authority to access, view, image or control the text messages. Rather, the policy allows employees, with a defined business need and who have secured company approval, to use their personally owned cell phones (no corporate phones are provided) to interact remotely with Hormel corporate systems. And, while Hormel had control over the data sourced from Hormel systems and synced between the mobile devices and Hormel servers, this data did not include text messages, which are available only on the individual’s devices and in no way are synced or managed by the company’s IT staff.
Because Plaintiffs issued subpoenas to the non-parties for the text messages at issue, the inquiry did not end with the court’s decision that Hormel lacked control over the text messages at issue. And so, the next question for the court was whether the 30 non-party subpoenas should be enforced.
The court starts with discussing the scope of discovery for a Rule 45 subpoena, which is the same as under Rules 34 and 26 and is subject to the same relevance and proportionality considerations. The court notes that under Rule 45(c)(1), even if a subpoena seeks relevant information, the discovery is not permitted where it imposes an undue burden. Here, the custodians claimed (without any affidavit or estimate from a vendor) the cost of compliance would be between $65,000 and $85,000 to image all 30 phones and more data than necessary to respond to the subpoena would be captured, which is a violation of their rights. After noting there were both more targeted ways to capture data, and likely more cost-effective, the court concluded the requested information was likely relevant but the custodians should not bear the cost, so the court compelled the custodians to search for and produce the text messages with certain parameters to preserve data in the event that this production reveals a basis to expand the search. It also ordered the parties to meet and confer on process and costs to be split between the plaintiffs and the defendant.
Although this case involved a fact-specific analysis that rose and fell on the BYOD policy in place, it serves as an important reminder that “possession, custody, and control” are the critical questions when determining whether discovery can be compelled from a party. Practitioners with doubts as to whether the party has control (practical or otherwise) should consider issuing subpoenas as plaintiffs did here.
 Agri Stats is a private service that gathers data from defendants and produces market reports for paying subscribers
 It also concluded that plaintiffs failed to demonstrate Hormel had the right, authority, or practical ability to obtain the text messages.