In the case In re Pork Antitrust Litig., No. 18-cv-1776 (JRT/HB) (D. Minn. March 31, 2022), Minnesota Magistrate Judge Hildy Bowbeer granted in part and denied in part the plaintiff’s motion to compel the defendant and the defendant custodians to produce responsive text message content, denying “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”, but granting it and ordering defendant custodians (other than Chenowith) to “search for and produce relevant text messages within a modified scope and subject to a modified search protocol”.
In this class action for antitrust price-fixing for the price of pork, the plaintiffs originally requested that defendant preserve data from personal cell phones of five company executives, but negotiations between the parties eventually grew the number of custodians to thirty – 17 current employees, 13 former employees. Plaintiffs submitted their first requests for production in November 2018, requesting data that included text messages and cloud backups or archived text message data, but defendant objected that it did not have possession, custody, or control of the custodians’ personal cell phone data.
While disagreeing with defendant, Plaintiffs also subpoenaed the custodians directly for the information. Plaintiffs proposed that all phones be searched for all text messages sent to or received from 781 phone numbers associated with individuals affiliated with Hormel or any other Defendant or any of the other identified pork integrators, plus remaining texts containing any of 330 keywords, following which the custodians’ counsel would review the results and produce relevant messages (and produce all “inter-defendant” text messages without a further relevance review, on the ground that all such messages were relevant). After failing to reach an agreement with defendant, plaintiffs moved to compel Hormel to produce relevant text message content within Hormel’s possession, custody, or control and sought the same relief regarding the custodians they subpoenaed.
Noting that some courts in the District have interpreted “control” to mean the legal right to obtain the documents while others have held that “control” may also include the “practical ability” to obtain the documents, Judge Bowbeer stated: “the Court need not choose between the ‘legal right’ and ‘practical ability’ standard because, for the reasons discussed below, it finds that regardless of the standard applied, Plaintiffs have not shown that Hormel has control over text messages on the personally-owned phones of its employees.”
Specifically, Judge Bowbeer stated: “Plaintiffs next argue Hormel’s remote wipe ability gives it control over employee texts, but the Court disagrees. The MobileIron application does not give Hormel the ability to access, inspect, copy, or image text messages; it only gives Hormel the ability to wipe those messages as part of a remote factory reset of the phone if Hormel concludes the security of its own data on the phone has been put at risk and if it cannot limit the wipe to only company data…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. The Sedona Conference has taken the position that an employer does not legally control personal text messages despite a BYOD policy when the policy does not assert employer ownership over the texts and the employer cannot legally demand access to the texts.”
Judge Bowbeer also stated: “there is no evidence that in the ordinary course of business Hormel seeks, needs, or expects to gain access to the content of employees’ text messages on their personally-owned phones. That five executives agreed to have their phones imaged for the purpose of preserving the data does not establish that Hormel has the practical ability to demand that it be allowed to inspect or produce the data, and it is no evidence at all that other custodians would be amenable to doing so.” So, she denied 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.”
As for the motion to compel custodians to produce responsive text messages, Judge Bowbeer confined her review to Requests 1 and 5, stating: “with the exception of Jessica Chenowith, who stated unequivocally that she never used her personal cell phones for work-related communications, the Court cannot conclude from the responses that adequate steps were taken to describe to the custodians what kinds of communications might be relevant and responsive information in the context of this complex litigation”. She also rejected the custodians’ arguments that they adequately demonstrated that they did not have responsive texts, that the requests were vague or ambiguous or that the information is available from other sources, or that imaging the phones imposed an undue burden, and found that “the custodians’ privacy concerns, while understandable, are manageable and not a basis for declining to enforce Requests Nos. 1 and 5 of the subpoenas.”
As a result, Judge Bowbeer stated: “Accordingly, the Court will enforce the subpoenas as to Requests Nos. 1 and 5 (for all custodians except Chenowith) and orders the custodians (other than Chenowith) to search for and produce relevant text messages within a modified scope and subject to a modified search protocol, as follows: Each subpoena will be limited to the time period or periods within which that custodian held the position that resulted in his or her being identified as a custodian. Plaintiffs’ counsel, Hormel’s counsel, and the custodian’s counsel shall meet and confer to confirm they have a common understanding on that subject.”
She also ordered the custodians (including Chenowith) “to preserve all text messaging data and all archived and cloud-stored text messaging data for the period January 1, 2008 – August 17, 2018, until December 31, 2022, or until such other date as may be agreed upon by the parties or ordered by the Court.”
So, what do you think? Are organizations not in possession, custody and control of their employees’ mobile device data, even with a BYOD policy? Please share any comments you might have or if you’d like to know more about a particular topic.
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