Extract from Kelly Twigger’s podcast “Mobile Minutes: Judge Xavier Rodriguez on Possession, Custody, or Control”
The lines between personal and professional communications have forever blurred, leaving attorneys and judges grappling with a fundamental question: When does an employer have “possession, custody, or control” over data stored on an employee’s personal mobile device? In this illuminating conversation with U.S. District Judge Xavier Rodriguez, we unpack this critical issue that impacts virtually every modern litigation.
Judge Rodriguez brings exceptional perspective to this discussion, having served as a practicing attorney at an AmLaw 100 firm, a justice on the Texas Supreme Court, and now as a federal district judge for over two decades. Drawing on this wealth of experience, he explains the two competing frameworks courts use to determine control – the “legal right” test and the “practical ability” test – while highlighting how neither fully addresses the realities of today’s digital workplace.
The problem extends far beyond academic legal theory. As business communications increasingly flow through text messages, WhatsApp, and other mobile-only applications, the stakes for preserving and producing this evidence have never been higher. Yet the case law provides inconsistent guidance, with courts often reaching conclusions without clear analysis of the underlying tests. This uncertainty leaves practitioners flying blind when advising clients about their preservation obligations.
