Anticipation of Litigation Advisor

Who Owns an Employee's Mobile Device Data?

October 31, 2019

When something big or bad has happened, who owns your employees’ mobile device data? The answer is somewhat complicated. First, the question is not necessarily who owns the device/data but whether a person or organization to which a document request is levied possesses, has custody of, or controls the device/data. See Rule 34, Federal Rules of Civil Procedure (and state counterparts). But before we talk about possession, custody, or control, ask yourself these questions:

Are you Adverse?

If the employee is an adverse or potentially-adverse party, whether the mobile device was employer-issued matters. If the mobile device was not employer-issued, yet the employee used the device to transact or capture employment-related business, then the employee or former employee has possession, custody, or control of potentially-discoverable (if relevant) information, and the employer need not produce it. If the mobile device was employer-issued, then an argument can be made that the employer possess, has custody of, and controls the device and everything on it. Such an argument is stronger where:

The employer notified the employee upon issuance that the device and everything on it was and would remain the property of the employer;
The employer notified the employee that he or she had no expectation of privacy while using employer-owned technology;
The employer audited employee use of technology for appropriateness (work-relatedness); and
The employer counseled employees upon detection of inappropriate use of workplace technology.

Physical control of an employer-issued mobile device is best negotiated through counsel.

Are you Aligned?

If the situation presented is such that the employer intends to align itself with the employee, the employer might as well gain timely possession of, custody over, and control of any evidence that is relevant to a controversy the employee observed or interacted with, regardless of whether the employer issued the mobile device in question. Upon an employer’s anticipation of litigation or investigation, an employer should investigate to the extent necessary to safeguard potentially-relevant evidence, collecting communications (both written and verbal) and visual recordings (photographs and videos) relating to the big or bad event and establishing a chain of custody for that information, including from where it came and when and how it was collected.

Employees should be made to understand the risk of using personally-owned devices to transact or capture business-related information and the potential cost – both monetary and privacy-related – of complying with a document/data demand. If an employee has already taken the plunge and used a personally-owned device to capture work-related content, the employer will undoubtedly pay professionals to strike a boundary between an employee’s personal and work-related data, either before or after collection. Some employers seek to avoid such costs via strict usage policies.

Beware of Troublesome Case Law

The fact is that the rules of procedure do not define “possession, custody, or control,” and some case law interprets the phrase in a way that is problematic.[1] Courts in the Second, Fourth, Eighth, Tenth, Eleventh, and District of Columbia Circuits have held that a person or organization to which a document request is levied has possession, custody, or control over data it has the practical ability to obtain,[2] though the Fourth, Eighth, Tenth, and Eleventh Circuits have applied more than one standard.[3] Surprisingly, “The Practical Ability Standard requires a party to preserve, collect, search, and produce Documents and ESI irrespective of that party’s legal entitlement or actual physical possession of the documents . . . .”[4] This standard is hard to measure and enforce and can create oppressive preservation obligations. Indeed, Sedona Conference Working Group One advocates abolition of the “practical ability” standard in the 2016 Commentary cited herein.[5] Until case law or statutes have developed more clearly in these jurisdictions, employers should obtain specific advice about their obligation to produce – due to their “practical ability” to obtain, regardless of how invasive or coercive that activity may seem – mobile device data that is in the physical possession, custody, or control of distant or uncooperative current or former employees.

Author: Jill McIntyre, Member, General Litigation
© October 2019 Jackson Kelly PLLC

[1] See Sedona Conference Commentary on Rule 34 and Rule 45, “Possession, Custody, or Control,” 17 Sedona Conf. J. 467 (2016).

[2] See Sedona Conf. J. at 488-89 (citing

2nd: Shcherbakovskiy v. Da Capo Al Fine, Ltd., 490 F.3d 130, 138 (2d Cir. 2007) (“If a party has access and the practical ability to possess documents not available to the party seeking them, production may be required.”); GenOn Mid-Atl v. Stone & Webster, 282 F.R.D. 346, 354 (S.D.N.Y. 2012), aff’d sub nom. GenOn Mid-Atl., LLC v. Stone & Webster, Inc., No. 11 CV 1299 HB, 2012 WL 1849101 (S.D.N.Y. May 21, 2012);
4th: Digital Vending Services International, Inc. v. The University of Phoenix, No. 2:09cv555, 2013 WL 311820, at *6 (E.D. Va. Oct. 3, 2013) (ability to control is defined as “when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action”) (internal citation omitted); Grayson v. Cathcart, No. 2:07-00593-DCN, 2013 WL 1401617, at *3 (D.S.C. Apr. 8, 2013) (“Control does not require legal ownership or actual physical possession of documents at issue; rather ‘documents are considered to be under a party’s control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.’”); Ayers v. Sheetz, Inc., No.: 3:11-cv-00434, 2012 WL 5331555, at *1 (S.D.W. Va. Oct. 26, 2012) (“Control may be inferred, even when a party does not have possession or ownership of the evidence, ‘when that party has the right, authority, or practical ability to obtain [the evidence] from a non-party to the action.’”).
8th: Prokosch v. Catalina Lighting, Inc., 193 F.R.D. 633, 636 (D. Minn. 2000) (“Therefore, under Rule 34, control does not require that the party have legal ownership or actual physical possession of the documents at issue; rather, documents are considered to be under a party’s control when that party has the right, authority, or practical ability, to obtain the documents from a non-party to the action.”) (citation and quotations omitted); Handi-Craft v. Action Trading, S.A., No. 4:02 CV 1731 LMB, 2003 WL 26098543, at *6 (E.D. Mo. Nov. 25, 2003) (“Thus, the appropriate test is not of legal entitlement, but of control or practical ability to obtain the documents.”).
10th: Tomlinson v. El Paso Corp., 245 F.R.D. 474, 476 (D. Colo. 2007) (“Control ‘comprehends not only possession, but also the right, authority, or ability to obtain the documents.’”); Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 517 (D. Kan. 2007) (“Production of documents not in a party’s possession is required if a party has the practical ability to obtain the documents from another, irrespective of legal entitlements to the documents.”) (internal quotation omitted).
11th: Anz Advanced Techs. v. Bush Hog, LLC, No. CIV.A. 09-00228-KD-N, 2011 WL 814663, at *9 (S.D. Ala. Jan. 26, 2011), report and recommendation adopted sub nom. Anz Advanced Techs., LLC v. Bush Hog, LLC, No. CIV.A. 09-00228-KD-N, 2011 WL 814612 (S.D. Ala. Mar. 3, 2011) (“‘[C]ontrol’ has been ‘construed broadly by the courts’ to include not just a legal right, but also a ‘practical ability to obtain the materials’ on demand.”).
DC: Bush v. Ruth’s Chris Steak House, Inc., 286 F.R.D. 1, 5 (D.D.C. 2012) (“Control does not require that the party have legal ownership or actual physical possession of the documents at issue, but rather ‘the right, authority or practical ability to obtain the documents from a non-party to the action.’”).).

[3] Id. at 492.

[4] Id. at 488 (emphasis added).

[5] Id. at 476.

Attorneys

Jill McIntyre