In Mickelson v. PGA Tour, Inc., No. 22-cv-04486-BLF (SVK) (N.D. Cal. Nov. 17, 2022), California Magistrate Judge Susan van Keulen ruled that custodial ESI (email and device-level data) in the actual possession of the agents of professional golfers was within their “control” within the meaning of Rules 34 and 45 and ordered the players to “produce non-privileged materials responsive to the TOUR’s subpoenas.”

Case Discussion

This case involved professional golfers that were members of the PGA Tour who signed contracts to play in a rival professional golf league, the LIV Tour. When the PGA Tour suspended players for violating the “Conflicting Events Regulation” by playing in LIV Tour events, several of those players filed suit against the PGA Tour.

This particular dispute involved the collection and production of custodial ESI from agents representing professional golfers Phil Mickelson, Talor Gooch, Hudson Swafford, and Ian Poulter. Those Players accepted service of the PGA TOUR’s subpoenas seeking the production of documents and the PGA TOUR’s subpoenas defined the responding party as including the Players’ “attorneys, agents . . ., member[s], or employee[s], or any other person acting on [their] behalf.”

Judge’s Ruling

Judge van Kuelen stated: “The federal rules require production of documents that are within the ‘possession, custody, or control’ of the responding person or entity. Fed. R. Civ. P. 34(a)(1). That standard applies no matter whether the responding person is a party to the litigation or a third-party subject to Rule 45.” She also stated: “’Control’ is the generally defined as ‘the legal right to obtain documents upon demand.’”

Continuing, Judge van Kuelen stated: “It is not credible that the Players cannot obtain responsive documents from their own agents, which with the use of limiter terms relate only to the agents’ representation of the Players. The Players’ focus on the means of identifying responsive documents – via agreed upon ESI search terms – is too narrow. The reliance on Rojas v. Bosch Solar Energy Corp., 2020 WL 8617414 (N.D. Cal. Aug. 28, 2020), and its analysis of ‘control’ in the context of complex corporate structures is similarly misplaced.” In that case, the Court ruled that the plaintiff had not shown that the defendant had a “legal right” to obtain any documents in the possession of the defendant’s outside legal counsel.

As a result, Judge van Kuelen stated: “the Court concludes that custodial ESI (email and device-level data) in the actual possession of the Players’ agents is within their ‘control’ within the meaning of Rules 34 and 45. Accordingly, the Players are ORDERED to run the parties’ previously-agreed upon search terms over their agents’ ESI, with the addition of added limiter terms designed to limit the scope of the results to materials related to their agents’ representation of the Players and not other potential principals. The Players are further ORDERED to produce non-privileged materials responsive to the TOUR’s subpoenas. The Players are further ORDERED to provide the TOUR with a log of all responsive materials withheld on the basis of any claim of privilege or protection from disclosure.”

So, what do you think? Do you agree that the circumstances of the case cited by the Plaintiff are different than this case? Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of eDiscovery Assistant, an Affinity partner of eDiscovery Today. Check out Kelly Twigger’s discussion of the case here!

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