In the case Owen v. Elastos Foundation, No. 19-CV-5462 (GHW) (BCM) (S.D.N.Y. Mar. 16, 2023), Plaintiffs sought access to the personal Gmail account of one of Defendant’s employees. Federal Rule of Civil Procedure 34(a)(1) states that a party may obtain discovery of documents "in the responding party's possession, custody, or control." 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." Bank of N.Y. v. Meridien BIAO Bank Tanzania Ltd., 171 F.R.D. 135, 146-47 (S.D.N.Y. 1997). In this case, Plaintiffs failed to show that Defendant had possession, custody or control over their employee’s personal device. The company is registered in Singapore, and Plaintiffs had not discussed whether there are Singapore or Chinese laws on the issue of control. Furthermore, the employee turned over his laptop and phone, sat for a deposition, and made a declaration detailing efforts to find responsive content. However, he refused to turn over his personal Gmail account, and Elastos has no policies giving it control over data on personal devices. Therefore, the Court denied Plaintiff’s request. The Court said it was not willing to assume Elastos has the practical ability to coerce compliance from the employee.

While requests for production are useful tools in e-discovery, requesting parties should consider control, scope, and proportionality issues, as well as relevance. Discovery served on employees may not be an effective way to obtain data from employees’ personal accounts and devices. Subpoenas directly to the employees, where justified by relevance and proportionality considerations, may be a more direct and effective route to such discovery. More information on the case can be found in the Exterro Case Law Alert, featuring insights from Reed Smith’s Patricia Antezana.