What happens when mobile devices meet 1938 rules? Judge Xavier Rodriguez says it means it’s time for a “uniform national standard”.

The article by Texas District Judge Xavier Rodriguez is one of six articles in a special E-Discovery issue published by the Journal of Technology Law & Policy in partnership with the University of Florida’s E-Discovery Conference. I provided a summary of the article last month. Here are five takeaways from Who Has “Possession, Custody, or Control” of the Employee’s Personal Mobile Device? Time for Amendments to the Federal Rules.

Takeaway 1: The End of “Two Pocket Problem” is Part of the Problem

For years, professionals maintained a strict physical divide between their personal and professional lives: what Judge Rodriguez refers to as the “two-pocket problem.” One pocket held a personal device for family; the other held a company-issued BlackBerry or pager for business. Today, that era is dead. Driven by the Bring Your Own Device (BYOD) movement, the distinction between personal and professional data has blurred into a single, seamless digital existence for many organizations.

While BYOD devices have provided companies with massive cost savings and employees with flexibility, it has also created a legal minefield. The core tension is a modern paradox: even if you own the phone, your employer – and by extension, their legal adversaries – could have a right to texts, chats, and photos inside it.

Takeaway 2: Mobile Devices Meet 1938 Rules

The governing standard for discovery in federal litigation is “possession, custody, or control.” This phrase, enshrined in Federal Rule of Civil Procedure 34, has remained essentially unchanged since its inception in 1938.

At the time of its drafting, the legal world was concerned with paper ledgers, carbon copies, and land records – not a world where terabytes of data – containing everything from intimate family photos to sensitive corporate strategy – would reside on a device carried in a pocket. And with BYOD adoption surging to as much as 80% across industries, as Judge Rodriguez notes, we’re struggling to define the boundaries of corporate responsibility in an age where “control” is no longer defined by who holds the physical data.

Takeaway 3: Why the “Legal Right” Test Often Fails

The “Legal Right” test – where the party has a formal legal entitlement to the data (via contract, statute, or policy) – is often praised for respecting property boundaries, but Judge Rodriguez states that it “is underinclusive and encourages evasion”. By requiring a formal legal mechanism (like a contract) to establish control, the test allows savvy actors to structure their relationships so that critical business communications occur entirely on personal channels, shielded from discovery.

The tide may be turning, however. In Weston v. Docusign, Inc., the court found the employer had a “legal right” to personal texts because their employment agreements explicitly stated that if employees used personal devices for company business, the company reserved the right to retrieve that information.

As we’ve learned from cases like EEOC v. Formel D USA, Inc., In re Pork Antitrust Litig. and Allergan, Inc. v. Revance Therapeutics, Inc., BYOD policies (or lack thereof) are key. If your employment agreements don’t explicitly address data ownership, you may be creating a discovery loophole that a judge will eventually view with extreme skepticism.

Takeaway 4: The Danger of the “Practical Ability” Test

Conversely, the “Practical Ability” test attempts to solve the evasion problem by looking at whether an employer has the functional ability to obtain the data or influence an employee to turn over data. This test tends to be intrusive.

While prioritizing a level of common-sense control, this standard often ignores the power imbalance in the workplace. It risks creating de facto mandates where employees feel professionally compelled to surrender personal devices while executives tend to avoid discovery. In cases like CA, Inc. v. AppDynamics, Inc., courts have argued that concluding otherwise would be tantamount to an “invitation for executives” to maintain two email accounts: one discoverable and one not. This disparity could be a nightmare for morale and culture, exposing employees to invasive oversight and surveillance.

Takeaway 5: A New Way Forward: The “Agency-Anchored” Solution

With neither standard adequate in Judge Rodriguez’s view, he proposes a functional “Agency-Anchored” standard. This approach moves away from rigid contracts and instead uses a rebuttable presumption of control based on the employee’s role:

• Officers, Directors, and Managers: As the voice of the corporation with discretionary authority, ESI on their personal devices is presumptively under company control.
• Rank-and-File Employees: Data on their devices is ordinarily outside company control and should be reached via a Rule 45 subpoena directed at the individual.

The result: A functional approach that recognizes that titles do not always perfectly track actual authority. A senior engineer might have more agency than a junior manager, but by focusing on the function of the individual, this standard balances corporate responsibility with individual privacy, ensuring that discovery remains a tool for justice rather than an all-access pass to an employee’s private life.

Saying “It is time for a uniform national standard”, Judge Rodriguez states: “The agency test, according to which employers have control over the personal devices of company officers, directors, managers, and supervisors who act as the corporation’s agents, may provide a way forward to achieving an appropriate balance. The proposed approach lessens the rigidity and under-inclusivity of the legal right test and the malleability and over-intrusiveness of the practical ability test.”

When mobile devices meet 1938 rules, it’s time to change the rules and standards. Judge Rodriguez’s proposed “Agency-Anchored” standard makes a lot of sense in addressing the shortcomings of both current standard to determine “possession, custody and control”.

So, what do you think of Judge Rodriguez’s proposed approach to address the issues caused when mobile devices meet 1938 rules? Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.