Philip Favro: New Cases Spotlight E-discovery Trends on Possession, Custody or Control and Jury Instructions re: ESI Spoliation

Extract from Philip Favro’s article “New Cases Spotlight E-discovery Trends on Possession, Custody or Control and Jury Instructions re: ESI Spoliation”

New e-discovery cases continue to proliferate, spotlighting key trends regarding the handling of ESI in litigation. Two particularly noteworthy topics include: (1) Possession, custody, or control questions involving employee text messages; and (2) the role and form of adverse inference instructions to juries to address ESI spoliation. Understanding how courts are addressing these issues will more readily prepare counsel to address them during litigation.

1. Possession, Custody or Control Issues Involving Employee Text Messages—In re Pork Antitrust Litig. (D. Minn. 2022).

In this multidistrict litigation involving price-fixing allegations against large U.S. pork producers, the court denied plaintiffs’ motion to compel defendant Hormel Foods Corporation to produce relevant, responsive text messages from its custodian employees and held that Hormel did not have possession, custody, or control over its employees’ text messages. Plaintiffs had argued that Hormel’s “bring your own device” (BYOD) policy provided the company with the “legal right” to obtain employee text messages because Hormel could remotely wipe employee personal devices. Plaintiffs additionally asserted that Hormel had the practical ability to obtain text messages from its employees since several employees had already agreed to have their phones imaged for preservation.

Magistrate Judge Hildy Bowbeer rejected both of these arguments. First, Judge Bowbeer found that Hormel did not have control over its employee text messages under the legal right test because the BYOD policy did not provide Hormel with express ownership rights over employee text messages, and Hormel did not require or expect that its employees would use text messages in the course of their employment.

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