In In Re Pork Antitrust Litig., No. 18-cv-1776 (D. Minn. Mar. 31, 2022), American pork industry companies were accused of price-fixing. The plaintiffs served one of the defendants, Hormel, with several requests for production and interrogatories regarding personal cell phone text messages and data from its current and former employees. Hormel objected to these requests on the grounds that it did not have possession, custody, or control of information from the custodians’ personal cell phones. The plaintiffs also subpoenaed the custodians directly for the information.

Since no production agreement was reached among the plaintiffs, custodians, and Hormel, the plaintiffs filed a motion requesting that the court find that Hormel had a duty to preserve and produce text messages from its employees' mobile devices and should be compelled to produce relevant messages.

The court found that Hormel’s Bring Your Own Device (BYOD) policy did not give Hormel authority to access, view, image, or control employees' mobile device content not already being synced to Hormel's systems. The court also found that Hormel’s ability to ask for employee cooperation did not amount to control over the employee’s mobile device content. Accordingly, the court did not require Hormel to produce the texts. The court did, however, enforce certain subpoenas issued directly to Hormel custodians for text messages. The Exterro case law alert has more details on the case, and features my brief expert commentary.

The holding of this case suggests that companies should consider ensuring that their existing BYOD policies (as well as legal hold and other information governance policies) clearly outline that the company’s ownership or right to access data on an employee’s personal device is limited to data synced to the company’s systems and does not extend to personal data or un-synced data. While policy language may not be sufficient to protect against burdensome discovery requests for employee personal device data in all cases, it can, as in the Pork Antitrust Litigation, provide evidentiary support as to the limits of the company’s control.

Litigation parties may, of course, still seek to serve subpoenas on employees for text messages or other relevant mobile device data, but forcing requesting parties to issue such subpoenas may curtail overbroad (or unnecessary) discovery requests, plus make additional protections available to non-party employees, including opportunities for cost recovery.