In Allergan, Inc. v. Revance Therapeutics, Inc., No. 3:23-cv-00431 (M.D. Tenn. Mar. 17, 2025), Tennessee Special Master Todd Presnell stating that “the Special Master finds that Revance does not have Rule 34(a) control over the personal devices of employees”, denied Plaintiffs’ Motion to Compel Searching of Devices used under Revance’s BYOD policies.

Case Discussion and Judge’s Ruling

The central issue in the ruling in this trade secrets misappropriation case was whether Defendant Revance had “possession, custody, or control” under Federal Rule of Civil Procedure 34(a) over the personal devices of its employees used under the BYOD policy, thereby requiring Revance to search and produce documents from these devices.

Allergan argued that the Revance Employee Handbook, specifically the “Search Policy” and “Electronic and Social Media” sections, supported compelled searching of personal devices. Revance countered that the Handbook’s search policy only applied to “Company property,” and the definition of “Computers” explicitly includes “other Company-owned items,” limiting its scope to company-owned devices.

Allergan also cited various provisions of the BYOD Policy to argue that these provisions, when read together with the Handbook, gave Revance control of the employees’ personal devices and allowed Revance to search them, including that “[t]he mobile device may be remotely wiped” if (1) “[t]he device is lost[;]” (2) “IT detects a data or policy breach, a virus or similar threat to the security of the company’s data and technology infrastructure[;]” or (3) “[a]ny user with an active IT account and has departed Revance.” In response, Revance argued that the BYOD Policy “is not as sweeping as Allergan claims” and that permitted business activity on personal devices was limited to “[c]onducting Revance business on the mobile device only via the user’s Revance email account and Revance IT approved email application.”

On November 15, 2024, the parties jointly moved the Court to “appoint a discovery special master to resolve discovery disputes,” “[g]iven the number of discovery disputes currently pending before the Court and the number of disputes expected to be raised in the future based on the parties’ discussions.” On December 11, 2024, the Court appointed Todd Presnell as Special Master.

In a footnote to the case, Special Master Presnell stated: “the parties’ briefing indicates that Allergan chose not to issue Rule 45 subpoenas directly to the subject employees and this Order therefore addresses only whether Revance has sufficient Rule 34(a) control over its employees’ personal devices to require it to obtain and produce data from those personal devices.”

In considering the Motion to Compel Searching of Devices, Special Master Presnell cited the case In re Pork Antitrust Litigation (among other cases), where a similar BYOD policy did not grant the employer control over text messages on personal phones because it did not explicitly assert ownership, control, or the ability to access personal text messages.

Regarding the Handbook, Special Master Presnell stated: “The Special Master agrees with Revance. The Handbook’s definition of ‘Computers’ includes ‘desktop computers, laptops, handheld devices (including but not limited to smart phones, and other electronic tablets and cell phones) … and other Company-owned items.’…The inclusion of ‘other Company-owned items’ plainly demonstrates that the definition refers to only Company-owned cell phones. Moreover, the inclusion of ‘cell phone’ in the definition of ‘[e]lectronic communication’ does not transform the definition of ‘Computers’ to include personal cell phones. As such, the Handbook, standing alone, provides insufficient support for holding that Revance has the required Rule 34(a) control over its employees’ personal devices, such that Revance should be compelled to search their devices.”

Regarding the BYOD Policy, Special Master Presnell stated: “The Special Master agrees with Revance. Just as in the BYOD policy in the Pork Antitrust case, Revance’s BYOD Policy does not authorize a search of its employees’ personal devices for any reason other than to inspect the ‘device configuration to ensure compliance with all applicable Revance information security policies.’…Moreover, the BYOD Policy is clear that the ‘code of conduct includes agreement to: … [c]onduct Revance Business on the mobile device only via the user’s Revance email account and Revance IT approved email application.’…As mentioned, Revance has already searched and agreed to produce company emails for each of the relevant custodians…But the Motion seeks the production of information beyond email, such as text messages. The BYOD Policy plainly forbidding the use of personal devices to conduct Revance business in applications other than email militates against a finding that Revance has Rule 34(a) control of those other applications.”

Continuing, he added: “While the Special Master adopts and applies the ‘legal right’ standard where a party seeks to compel an employer to produce information contained on its employees’ personal devices, the Special Master further rules that Revance does not have Rule 34(a) control over its employees’ devices under the ‘practical ability’ standard…Allergan did not argue or otherwise establish that Revance obtains its employees’ personal-device data in the ordinary course of business, or that the Revance employees from whom personal devices are sought have cooperated in producing documents or have a financial interest in this litigation.”

Denying Plaintiffs’ Motion to Compel Searching of Devices, Special Master Presnell stated: “Accordingly, without an agreement between Revance and its employees permitting Revance to search employees’ personal devices, explicit language in the policy giving Revance control over its employees’ personal-advice data, or more information about whether the subject employees actually used any other application on their personal phones for work purposes, the Special Master finds that Revance does not have Rule 34(a) control over the personal devices of employees Alexis Jammo, Domenico Vitarella, Todd Gross, and Roy Yoshimitsu.”

So, what do you think? Are you surprised that the Special Master denied the Motion to Compel Searching of Devices? Are you surprised that plaintiffs’ chose not to issue Rule 45 subpoenas directly to the subject employees for the data?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case opinion link courtesy of Minerva26, an Affinity partner of eDiscovery Today. See what Kelly Twigger has to say about the case here!

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