#CaseoftheWeek Episode 72: Production of Text Messages from Personal Mobile Devices

Episode 72 is a longer analysis than usual with us discussing the decision made by United States Magistrate Judge Hildy Bowbeer. The case for this episode is In re Pork Antitrust Litig., 2022 WL 972401 (D. Minn. 2022), and we’ll discuss whether a party can be compelled to produce text messages from an employee’s personal mobile devices.

Good morning, and welcome to episode 72 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the founder and CEO of eDiscovery Assistant and the principal at ESI Attorneys. Thank you so much for joining me today.

As you know on our Case of the Week series, each week we choose a recent decision from our eDiscovery Assistant database that highlights key issues for litigators and those involved in the eDiscovery process, and we talk about the practical implications of that decision and what it means for you.

This week’s decision comes to us from the case titled In re Pork Antitrust Litigation. This is a decision written by United States Magistrate Judge Hildy Bowbeer, dated March 31st, 2022. Judge Bowbeer has 26 decisions in our eDiscovery Assistant database, so she’s well versed in eDiscovery issues, and today’s decision is one that is going to raise a lot of eyebrows.

Today’s decision is on the discoverability of text messages on an employee’s personal cell phone when the company has a BYOD policy in place. Although our discussion today is going to be a little longer than usual, I really encourage you to stick with me because there are really interesting issues here that you’re going to need to pay attention to.

I think we’re finding that we have text messages in just about every case these days, and this Court’s decision is an important one and one that will be interesting to see if it changes the view of the production of text messages. Essentially, whether it catches on. Judge Bowbeer’s decision is — let’s say it does a different analysis that we’ve seen in other cases regarding the production of text messages. Let’s dive in.

Facts

The underlying facts of this case are that this is a class action for antitrust price-fixing. The class plaintiffs alleged that the defendants, who are among America’s largest pork producers and integrators, conspired to limit the supply of pork and thereby fixed prices in violation of federal and state antitrust laws.

More specifically, the plaintiffs alleged the defendants were able to carry out the price-fixing conspiracy by exchanging details competitively sensitive, and closely guarded non-public information about prices, capacity, sales volume, and demand through Agri Stats, which is a private service that gathers data from defendants and produces market reports for paying subscribers, and by signaling the need to cut production through public statements aimed at one another.

Now, using those two mechanisms, the defendants were alleged to be able to stabilize or increase the price of pork products from 2009 to the present. We’re talking about quite a significant period of time ago since we’re in 2022 today. We are currently before the Court on the class plaintiffs’ motion to compel Hormel to produce responsive text message content and to enforce subpoenas to Hormel custodians. Hormel is one of the defendants in this litigation.

On this motion, the plaintiffs seek an order asking for three different things. First, they asked the Court for an order compelling Hormel to produce text message content of its currently employed custodians, including backup content that’s stored on cloud devices. Second, it asks for the Court to declare that Hormel had an obligation to preserve an image of the employees’ phones and cloud backups, including text message content, from the start of the litigation for all of its custodians, and an accompanying order for Hormel to to do so now. Third, to enforce the subpoenas to the Hormel custodians for the same material. Essentially, as we get to the analysis, we’re going to find that the Court grants the motion in part, but also denies the motion in part.

There are some facts that we need in support of this motion before the Court. In 2018, the plaintiffs requested the preservation of mobile devices of five custodians, and Hormel agreed to do that preservation. In 2019, Hormel and the plaintiffs agreed to an ESI protocol and to a protocol for the preservation of phone records. The preservation protocol applied to Hormel and its document custodians. The custodians that are at issue on this motion are covered by both of those documents.

Hormel initially identified seven document custodians, but based on additional negotiations with the plaintiffs, the custodians for Hormel are now at 30 — 17 of those are current employees, 13 of them are former employees. We’re talking about text messages from 30 employees, some of which are former, some of which are current.

In November of 2018, prior to the ESI protocol and the protocol for preservation of phone records, the plaintiffs served their first requests for production, and part of those requests sought communications about meetings between the defendants or related to the lawsuit’s subject matter, as well as information regarding supply, demand, and the price of pork products. The requests defined document to include text messages and cloud backups or archived text message data.

At that time, in response to those requests for production, Hormel objected that it did not have possession, custody, or control of the custodian’s personal cell phone data. Hormel then again responded to the same effect to plaintiffs’ November 20th interrogatories, which also sought further information about the make, model, and use of the custodians’ cell phones, though Hormel did provide the cell phone numbers for those individual custodians.

The plaintiffs asked whether Hormel had produced the text messages of two custodians’ cell phones, and Hormel instructed the plaintiffs that it did not have possession, custody or control over those phones, so it could not produce those text messages.

The plaintiffs responded as you might expect with — “You have to be kidding me. This is the first time you’ve said you don’t have custody or control,” and again required production. Hormel responded that it had complied with his duty to preserve under the preservation protocol and the obligations under the Federal Rules of Civil Procedure related to personal phones outside of its control.

The plaintiffs continued to disagree with Hormel, but proceeded to subpoena. They sent individual subpoenas under Rule 45 to all 30 of the custodians for the same information on the text messages from their cell phones.

Custodians’ counsel, not defense counsel, then interviewed each custodian to determine whether they might have potentially responsive information on their phones. We do not have information in this decision whether custodians’ counsel were also Hormel’s counsel.

Now, the custodians responded that they were all using different phones than the ones that they used during the relevant time period for the litigation. Information submitted by counsel on the motion identified five categories that various custodians fell into with regard to what extent they used their personal cell phones for work purposes and or texted for work purposes.

Those five categories included 1) rarely communicated by text message for work-related matters, 2) did not communicate by text outside Hormel, 3) did not use text for communications of the nature sought by the subpoena, 4) never texted about work-related matters, or 5) never used their personal cell phone at all for work-related communications.

Every single custodian objected to the subpoena and failed to respond. The parties then engaged in additional negotiations. The plaintiffs wanted to have the custodians’ current phones imaged and then search for the text messages using the agreed upon search terms. We’ve talked multiple times about the issues with using those search terms, but that was what was proposed by the plaintiff. Those issues with search terms are particularly problematic here — in antitrust cases, witnesses are often very aware of covering their tracks and often use code words or other terms that would not be known to counsel, so impossible to select as search terms. There’s absolutely nothing in this decision to suggest that counsel had access to information about what search terms would be appropriate from plaintiff’s perspective, so that’s just a practical tip that I’m pointing out.

The plaintiffs also asked that the imaged phones be searched for all text messages 1) sent or received to 781 phone numbers that were associated with individuals affiliated with Hormel, any other defendant, or any other of the identified pork integrators, plus 2) remaining texts containing any of the 330 keywords that plaintiffs had identified.

Plaintiffs proposed that following the imaging of those phones, custodians’ counsel would be able to review the results and produce the relevant messages. But plaintiffs also demanded that all inter-defendant text messages be produced without a relevance review, arguing that such messages are relevant, essentially saying you can review and search these results of these 781 phone numbers for what’s relevant and give us what’s relevant, but anything that is between these custodians at Hormel and any other defendant has to be produced without review for relevance. That in and of itself is going to be a problem.

The custodians said, “No, plaintiffs haven’t even shown that all 30 custodians were likely to have texts that were responsive to the subpoenas and that the proposed searches were overbroad and unduly burdensome.” The plaintiffs and the custodians also disagreed about who would bear the cost for the proposed searches and imaging of the devices. I assume that also applies the cost of imaging all of those phones, but that’s not really discussed until later on in the decision.

Plaintiffs then filed this motion to compel to do two things. One, require Hormel to produce the text messages content that are relevant to the conspiracy claims that are within their possession, custody, or control in response to the request for production seeking that information. Two, 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.

Court’s Analysis

What is the Court’s analysis here?

Well, the Court starts with Rule 34’s requirement that a party must produce relevant and responsive documents that are within its possession, custody, or control. We’re starting not with the custodians’ subpoenas, but with whether or not Hormel has an obligation to produce this custodians’ data from their personal cell phones. Hormel disputes that it has the requisite possession, custody, or control.

The Court then goes into an analysis of two different standards. One, the practical ability standard, and second, the legal rights standard. Both standards are used in the Federal Circuit Courts and there is a split between the Courts. But the Court ultimately says that it really doesn’t matter which of these standards applied because the plaintiffs have not shown that Hormel has control over the text messages on the personably-owned cell phones of its employees.

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 says that when the party has the right, authority, or practical ability to obtain the documents from a non-party to the action. It’s important to keep that practical ability test in mind because the Court does reference it later. The Court also notes in its discussion of the practical ability test that the burden of demonstrating that the party from whom the discovery is sought has the practical ability to obtain the documents at issue lies with the party seeking discovery. In essence, the Court says that under the practical ability test, the plaintiffs here are required to show that the defendants have the requisite control over the documents to be able to produce them.

That’s pretty crazy, but it is consistent with many of the misplaced burdens that we have in the discovery context. And again, we need authority from the Rules Committee on where those burdens are supposed to live. We are often putting burdens on the party who has no access to information to be able to support or prove its burden on those issues.

What the Court does not say here is that the legal right test also imposes that burden on the requesting party. You’ve got a difference between the legal right test and the practical ability test. Keep that in mind because we’re going to come back to the practical ability test later.

Next, we’re going to go through a long analysis by the Court. But what we’re going to get to is that the Court decides the plaintiffs have not shown that Hormel has control over the text messages on the personally-owned cell phones of its employees, even though the legal rights standard is not noted to shift that burden. The Court says the practical ability test doesn’t apply, but also plaintiffs you haven’t met your burden, which suggests they are applying practicability test.

Does Hormel’s BYOD Policy Create Possession, Custody or Control?

Next, the Court considers whether Hormel’s BYOD policy gives Hormel control over the text messages on the personally-owned cell phones. We’re still determining whether possession, custody, or control exists under Rule 34 for Hormel to produce those text messages. The plaintiffs say that Hormel’s policy requires employees to use their cell phones to conduct business and that Hormel controlled all of the data on those phones through its BYOD policy. The plaintiffs do so by pointing to the ability of that policy that allows for Hormel to wipe all of the personally-owned cell phones whenever it deems necessary for security purposes.

Hormel’s policy does not give it legal authority to access, view, image or control the text messages, which means that it does not have the requisite control under Rule 34. That’s what Hormel argues.

Here’s a little bit more information on Hormel’s BYOD policy so you can do the analysis in your head as we’re going along with what the Court says. The policy has been in place since 2011. The policy allows employees to use their personally-owned cell phones to interact remotely with certain Hormel corporate systems. Hormel does not provide its own corporate phones to be used separately. If a custodian or if an employee is going to use corporate information on their cell phone, they have to use their own phone.

The policy also provides for employees who have a defined business need to be reimbursed for mobile service for a personally-owned phone, although the employee is responsible for all costs associated with purchasing and maintaining a phone and any accessories, as well as the cost of any application downloads for purchases. Essentially what Hormel’s policy says is if you can define a business need for you to have access to Hormel-based information on your mobile phone, we will pay for it. We’ll pay for the cost of it, your monthly cost of maintaining that phone.

Hormel argues that under that policy, it only has control over “the data that is sourced from Hormel systems and synced between the mobile device and Hormel servers.” Because text messages, which are an issue here, are not synced, Hormel argues that they do not have control over them.

Now, if you’re watching our Case of the Week, you’re probably very familiar with texts, as we’ve discussed multiple cases with text messages. The text messages are available on the device they are sent from and the device they are received on. That can be multiple devices if it’s a text string sent to multiple people, but the content of text messages are not stored by service providers. There are different pieces of legislation that are floating around to change that, but as it currently exists, the content of text messages are available only on those devices. That can also change if you are an Apple user and you store those text messages on a different device, but because those messages all sync between devices, whatever action you take on one device will be replicated to the other devices.

Hormel then argues that the data that it is under its control consists primarily of email, calendars and contacts if those are set up through an employee’s corporate email account, not a personal one, but does not include text messages or other information on a personally-owned device. Hormel further asserts that the policy does not explicitly assert ownership, control, or ability to access, inspect, copy, image or limit personal text messages.

Under the policy, Hormel requires an employee who accesses Hormel data using their personal phone to install an application called MobileIron. That application prevents an employee from copying or backing up Hormel owned data residing on their phone. Now, that MobileIron application does not interfere with or limit the employee’s ability to copy, delete or backup text messages, nor does it enable Hormel to access or image text messages and we just talked about why. You can’t infiltrate the text messaging application to make it corporate owned. There are other applications that can be used within the corporation, like Teams that could be managed by Hormel or other corporations.

But here, if you’re using the text messaging functionality that is inherent to a mobile device, whether you’re on an Apple or an Android system, then those are not going to be able to be synced and controlled or managed by a corporation’s IT staff. That’s just the way the mobile device works.

Now, under the policy, Hormel also reserves the right to remotely wipe using MobileIron and the data controlled by it or to wipe the phone to remove all Hormel-related data. The policy also warns that a wipe of the phone may also delete the entire contents of the phone, including any personal data such as text messages, and when we talk about a wipe, we’re talking about a factory reset. If you have a mobile phone, you know what a factory reset is. It wipes all of the information off of the phone.

However, the policy also says that following a wipe, the employee may freely restore any personal data that he or she personally had backed up to external storage. Meaning information that, say, for an Apple device, you would have uploaded to iCloud. Now, the plaintiffs argue that the policy means that the language in the policy which says, “All approved employees will be expected to use a personally-owned mobile device,” to mean that the Hormel employees are required to use their own personal cell phones and to use them for business.

Now, the Court says that the plaintiffs take this out of context because an employee must request Hormel’s permission to use a personally-owned cell phone to access Hormel’s systems and may request that Hormel reimburse the employee for monthly carrier service charges. Hormel must then approve the request if the employee has a defined business need to use the phone, but in the ordinary course of his or her work for the company.

However, according to the Court, nothing in the policy appears to require any employee to use a personally-owned phone to conduct work, and nothing in the policy requires any employee who uses a personally-owned phone to use text messaging to conduct work.

Now, I think, practically speaking, you’re all shaking your heads with me at this point. Just because a company does not specifically advocate that an employee use a particular method of communication, we can’t put our heads in the sand and pretend that it doesn’t happen. Text messages can’t be synced, so Hormel or any other company with a BYOD policy can’t control them.

This is where I think that the language and interpretation of Rule 34 by the Court here goes a bit far and also really doesn’t consider modern technology and how it functions. That language of possession, custody, or control dates far back before the advent of modern technology, including text messaging. It just doesn’t jive with the functionality that exists now in terms of interpreting it within the rule’s standards.

The next important fact is that there is no mention at all in this decision as to whether or not the 30 custodians at issue here were approved under Hormel’s policy and therefore were using personal cell phones to house Hormel’s data. That’s a pretty significant fact because if they aren’t, then there’s really no question that Hormel doesn’t have custody or control of a plaintiff’s personal phone. If they are, that changes the analysis, and the question becomes, “Does the policy’s language preclude Hormel from having control over non-Hormel-related data?”

The plaintiffs argued that Hormel’s ability to wipe the phone remotely demonstrates control. The Court disagrees because it says that the MobileIron application doesn’t give Hormel the ability to access text messages. It is limited only to allowing Hormel to manage and wipe messages that are part of a factory reset if there is a security issue. Now, that begs the question of whether Hormel could have wiped all these custodians’ phones and claiming a security issue to avoid the possession, custody, and control issue, but that would be a pretty significant spoliation issue as well.

The Court also notes that the BYOD policy limits control only over data that is sourced from Hormel’s systems and synced back to Hormel’s servers. That data does not include text messages, but then the Court includes a very interesting caveat. The Court notes that if an employee copied any Hormel-related data into a text message, that those text messages would then be in the possession, custody, or control of Hormel.

The only way to know if that had actually happened would be to examine each of the text messages, which the Court’s ruling on possession, custody, or control really precludes Hormel from doing. These statements really don’t work together, and I feel like the Court’s parsing of the language of possession, custody, or control under this BYOD policy is going to be something that’s going to have to be revisited both at an appellate level, but also in further decisions by other Courts in the country.

Now, the Court does site to the Sedona Conference and makes a blanket statement that:

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 the company data does not give the company control, legal or practical, over that personal data.

Now, there are no cases that the Court cites in support of this analysis, but there is one case that it distinguishes, and that is the Heinz v. Starr Surplus Lines case. In that case, the special master specifically required a party to produce text messages from a personal cellphone of an employee subject to a corporate BYOD policy.

While the Court distinguished Heinz because it did not specifically address the question of control, Heinz is actually really in complete contrast to the Court’s decision here because it requires production of the text messages at issue from a personally-owned device. The Court here says that the BYOD policy does not give Hormel control over the text messages on personally-owned cell phones, and that’s the end of that analysis.

Relationship Between Hormel and Custodians as Basis for Control

The next question the Court addresses is whether or not the relationship between Hormel and its custodians, who are former and current employees, gives Hormel control over those text messages on their personally-owned cell phones. Essentially, the BYOD policy has said there’s no personal control. Now the question is whether there’s a relationship here that creates that control.

The plaintiffs argued that Hormel could have asked all of its custodians to give it access to the text messages and that the custodians would have likely agreed. They base that argument on the fact that Hormel had five executives who did agree to have their cell phones imaged. The Court says, “No, that’s not going to be the correct analysis,” and offers this: “it is one thing to show that a responding party may ask for documents in the possession of someone with whom it has a relationship, but quite another to conclude that the party has the practical ability to demand such documents and therefore has, ‘control over them‘.”

The Court goes on to suggest that an employee can feel pressured to turn over their text messages to keep their job, and that is not the same as the practical ability to demand access. Again, we’re back to that practical ability test that the Court did not say actually applied here. This part of the opinion is pretty confusing because the Court really invokes the practical ability standard here but really never definitively determined that it applied in the early part of the decision where it discussed those two standards.

That does beg the question as to whether the five executives who agreed to have their phone images really did agree or whether they were pressured to do so. I’ll be honest and say that in all of the cases that I’ve handled where cell phones had to be imaged from employees, whether executives or not, no one really wanted to do it. We had to craft a process whereby we could really protect all their private information and just get the precise information that we needed for the litigation. Ultimately, that’s the same conclusion that the Court comes to here as to how the party should proceed.

Now, the Court says that even though those five custodians agree, it doesn’t mean that Hormel still has that practical ability, and therefore, it has absolutely no bearing on whether or not the other 25 custodians’ phones should be produced. Nor does it mean that the fact that the custodians who willingly answer questions about whether or not they use text messaging has any impact on the custody and control analysis. The Court denies the plaintiff’s motion insofar as it seeks to compel Hormel to collect, review and produce responsive text messages on its employees’ personally-owned cell phones. That’s with regard to Hormel. You can’t get them from Hormel.

Subpoenas to Custodians

The second issue then becomes can plaintiffs get text messages under the subpoenas that the plaintiff sent to the 30 custodians. Remember, they sent separate subpoenas to each one of the individual custodians asking for the same text-based information. The question is whether or not those subpoenas should be enforced.

The Court starts with discussing the scope of discovery for a Rule 45 subpoena, which is the same as the scope of discovery under Rules 34 and 26 and has subject to the same constraints on relevance and proportionality. The Court notes that under Rule 45(c)(1), even if a subpoena seeks relevant information, discovery is not permitted where it imposes an undue burden based on the same factors proportionality in Rule 26(b), and that the Court may quash or modify a subpoena that imposes an undue burden on the non-party, or request irrelevant information.

Regarding the burden, under Rule 45, the Court notes that it falls to both parties and the Court to make sure that the standards of relevance and proportionality are met:

A party requesting production should be able to explain the ways the requested information bears on the issues of the case, while the person resisting production will ordinarily have much better or the only information about the burden and expense of production.

Okay, the scope of those subpoenas, there were seven requests that were directed to each custodian under those subpoenas, and it’s really two of those requests, Request 1 and Request 5, that are at issue here related to the text messages. One of those requests asks that the custodians produce the text messages sent or received during the relevant time period with an employee or a representative of a pork integrator or any other individual with whom you communicated about supply and demand conditions in the pork industry. Not the narrowest it probably could have been, but decently tailored.

The second request asks for documents sufficient to show and to provide access to the forensic vendor for collection purposes, the location, date, and scope of any archived copies of your cell phone data, such as iTunes archives or iCloud archives.

Essentially, we’ve got two requests. One for the messages off the phone and one for the archives. The custodians then objected to all seven of the requests on proportionality grounds, among others. The Court starts the analysis by looking at whether or not the custodians have adequately demonstrated that they do not have any responsive texts. We’re starting with — is there any relevant information here that would require it to be produced?

Counsel said, “Hey, we asked them all, and they all said they have nothing responsive, but one of them acknowledged that they did use their personal devices to text on business matters.” The Court found that the defense counsel’s interviews were not sufficient to establish that the relevant text messages did not exist and stated that it:

Could not conclude from the responses that adequate steps were taken to describe to the custodians what kinds of communications might be relevant and responsive in the context of this complex litigation or to test the accuracy of their recall about whether at some point over the relevant time period or periods they sent or received relevant or responsive text.

Essentially, what we have here is counsel interviewing custodians, asking them if they remember anything, and this is a 10-15-year period. Some of this was ten years ago. The Court said, “It wasn’t sufficient what you did.” I think it’s pretty clear that really only a review of the actual text messages themselves would be able to determine whether or not there was relevant information.

The Court then goes a bit further and comments that the evidence that responsive texts do is really quite weak, that the plaintiffs provided phone records that show that the custodians texted work-related contacts, but of course did not provide the substance of those messages because they’re not stored by the carrier. The Court also notes that the plaintiffs identified a relationship between several custodians and one of the pork integrators where the custodians confirmed they used text messages to communicate.

Those are the two pieces of evidence that the plaintiffs put forth to establish essentially circumstantial evidence that these text messages would be relevant, and the Court says, “Well, this is pretty thin, but it’s still evidence.” The Court did deny the subpoena as to the one custodian who stated that she did not use text messages at all, but for the remaining custodians, the Court says that it was not satisfied that the inquiries made by Counsel adequately demonstrated that there was a reasonable search for responsive texts. The Court could not conclude that such texts were non-existent.

Essentially, the Court can’t decline to enforce the plaintiff’s request for all other custodians at this point because it’s essentially saying, “Hey, you gave us some evidence that things were relevant, and the defendants really didn’t do enough to show us that there is no relevance here.”

The Court then next looks to decline to enforce the request in the subpoena as vague or ambiguous or whether or not the information is available from another source. The Court then says no to both of those. There’s no evidence the texts are vague or ambiguous put forth by the plaintiffs, and they can’t be obtained from any other service providers. So that prong is met.

Next, the Court turns to whether imaging the phones and searching the data imposes an undue burden on the custodians and is not proportional to the needs of the case. The custodians make two arguments in support of undue burden. First, that the cost will be between $65,000 and $85,000 in total to image all 30 of the phones, that it’ll take between three hours and more than a day based on the amount of data on the phone, and that some of them live out of state and will have to mail their phones to the third-party forensic provider. Second, they also argued that imaging captures a lot more data on the phone than is necessary to respond to the subpoena that is private and confidential and violates the custodian’s rights.

Now, despite making those arguments, the custodians offer no affidavits in support of the cost, and the Court notes that it’s really not clear to it that the cell phones would need to be imaged in their entirety, that there are likely methods to be able to extract the cell phones or the text messages from the cell phone. That means that the phone would not have to be imaged in its entirety. Personally, at our firm, we use multiple methods just to be able to collect text messages as opposed to imaging the entire firm, so the Court is absolutely right on that context.

The Court was on to state that it’s not clear that all of the phones need to be imaged, as many of them weren’t even in use during the relevant time period, and that the custodians had absolutely no estimate of the number of texts to be captured under plaintiff’s proposed search method, and they haven’t even explored any other options of doing things much more cost-effectively.

The Court did agree that the custodians should not bear the cost, so it compelled the custodians to search for and produce the text messages with certain parameters to preserve data in the event that this production or discovery 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. There is really no better way to have the parties do this economically than to have them meet and confer and be able to split the costs.

The Court didn’t identify that there were any other proportionality concerns, and she also noted that the privacy issues raised by the custodians could be managed through targeted searches with the forensic provider and also that most forensic providers have processes in place to deal with those privacy concerns. Essentially, the Court is ordering that these text messages be produced with some limitations.

Now, the final analysis by the Court is whether the requests are vague and ambiguous or seek any irrelevant information. The Court agrees that some of the data that is encompassed by the request is relevant, but also finds that the scope of the request for text messages from 781 phone numbers is overbroad, as not all of them will be relevant.

It’s really easier to understand the Court’s thought on that by looking at the plaintiff’s proposed search method, which is a little bit of their downfall here. Essentially, the plaintiffs want all texts exchanged with any number on a list of 781 phone numbers associated with individuals affiliated with Hormel or any other defendant or any of the identified pork integrators, and it wants those text messages to be produced without regard to their content. I raised that at the outset of our discussion. Really, you’re talking about saying, “Give us the text messages, but we’re not going to let you let the counsel review them first.

The Court notes that the evidence does not show that the custodians texted those numbers only, or if at all, about the relevant subject matter, as opposed to just other work-related topics or even non-work topics like social plans. Just because there may be some relevant texts within a data set does not make all texts within that set presumptively relevant. Again, that request for the text messages to be produced without a review for relevance was overbroad, and the Court said no.

With regard to request Number 5, which asks for the archived info, the Court imposed the same limitation. It said it’s not specifically tailored to the job responsibilities of the individual custodians, which is highly relevant to the relevance of each individual’s custodian’s text messages.

For example, if Jane was the supervisor that caused her to be named as a custodian for three years within the time period, then the search of her text messages should be limited to those three years unless there is a reason for the scope of her text messages to be broadened.

Now, with those limitations, the Court did enforce the subpoenas for those two requests and ordered that the custodians search for and produce relevant text messages within a modified scope and subject to a modified search protocol that the Court sets out. I’m not going to go over that entire protocol, but it’s really important, if you’re dealing with this issue, that you look at that protocol and understand the limitations that the Court imposed on it.

The Court also notes that the production of text messages might expand the scope of discovery beyond what is permitted here, and require the preservation of all text message data and all archived and cloud-stored text message data for the requisite time period for all of the custodians under the subpoenas.

Request for Order on Duty to Preserve

The plaintiffs also asked the Court for an order to issue that Hormel had a duty to preserve all text messages and devices at the start of the litigation because the Court had held that Hormel did not have custody or control over the text messages.

The Court found that Hormel sending out a litigation hold notice to all of these custodians was sufficient to preserve their information and to advise the custodians that they needed to preserve their information, including text messages. The motion to compel was granted in part and denied in part.

Takeaways

We’ve got a pretty big case here in terms of dealing with text messages. The interplay of the BYOD policy, I think, is something that we’re going to look back to. In a way, I think the Court takes a pretty broad leap in parsing the language of Rule 34 without really any cited precedent. It does rely on the Sedona Conference but no other cases on its ruling that Hormel has no custody or control over data, that it has no control on an employee’s personal phone.

I think we’ll want to keep an eye on whether or not that portion of this case will survive additional review, or whether it will be consistent with other decisions on the control of data where a corporation encourages employees to have personal phones on which to conduct company business.

Our second really big takeaway from this case is that if this case is the way the Courts begin to interpret control for purposes of discovery of text messages, that will likely be carried over to other sources of ESI that are maintained on personal cell phones, but cannot be controlled by company IT directors.

Think about WhatsApp, Signal, Telegram, multiple other sources of ESI that may not be controlled by the company IT like using an app like MobileIron, but are still used for work purposes and to which the custodians testify that they used for work purposes.

Now here, essentially the plaintiff did an end run around the BYOD policy and said, “Well, just in case the Court finds the BYOD policy says they don’t have custody or control, we’ll just send them subpoenas.” That eliminates the custody or control requirement from Hormel. Keep in mind, you may have to use that in your back pocket if the Court’s analysis here under a BYOD policy holds up that using a third-party subpoena under Rule 45 to send to those custodians may be the route that you have to go.

There’s one additional thing to think about when you’re talking about those third-party subpoenas. If that control standard that the Court lays out here is adopted more broadly, you’re really going to need to identify those custodians very early on and send them a very specifically drafted subpoena to get to those text messages or any other data that would not be controlled by the corporation.

Here in this case, the Court allowed discovery of the text messages under the subpoena request under Rule 45, but it was the BYOD analysis and the notion of control that really required the subpoenas. If you’re going to go the subpoena route, make sure, unlike here, that they’re tailored.

I would also urge you to look at some of the other decisions that are in the eDiscovery Assistant on these issues because when it comes to mobile devices, what I would have suggested that the plaintiffs do here or even that Hormel did, was to lay out the analysis for each individual custodian, so that the Court could do its analysis of vagueness or over breadth, proportionality and control, as it pertained to each custodian’s device. They may have gotten different results there, they may have also gotten a clearer order from the Court on what it is that they would be entitled to discover of those mobile phones.

Okay, one last question here is whether or not Hormel really did itself any favors by asserting that it lacked control. In some cases, I would consider the question of whether or not it would have been better for Hormel to manage the process of the production of those text messages.

Again, we are talking about a price fixing conspiracy here and perhaps Hormel wanted to keep them from discovery at any cost and that was its best argument on the possession, custody, or control. That’s pure speculation on my part, but something to keep in mind. When you’re going against a party that’s refusing to give you discovery, you need to be clear to do exactly what the plaintiffs did here, and that is move to compel for that evidence and address these individual arguments.

There are a number of situations on the arguments here, and there were a lot of them as we went through, that in objecting, the custodians didn’t put forth a lot of affidavit or factual-based information, at least that’s mentioned in the decision that would have supported some of their arguments. There could have been a lot more clarity, I think, from both sides. We’re going to keep an eye on how these proceedings unfold once the production of those text messages is made and see if we have any future discovery decisions that we can discuss on the Case of the Week.

That’s a Wrap

That’s our Case of the Week for this week. I know it was a long one, so thanks for hanging in there with me. We’ll be off next week on July 5th. I hope that many of you will be on vacation, enjoying summer, being with your friends and families, and we’ll see you back here for Case of the Week on July 12th. Thanks so much for joining me. Have a great week.

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You’ll be able to read episode summaries and watch the recorded show right here on the eDiscovery Assistant blog or access the recorded versions on our Vimeo channel.