Meet and Confer with Kelly Twigger

Mobile Minutes: Judge Xavier Rodriguez on Possession, Custody, or Control

• Kelly Twigger

Share episode

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.

Most concerning is the rapid evolution of technology compared to the relatively static legal frameworks. Post-COVID work patterns have accelerated the use of personal devices for business purposes, creating a perfect storm where traditional notions of possession and control fall short. As Judge Rodriguez notes, "The rules and interpretation of the rules are not in pace with technology and the way that it's impacting data for purposes of discovery."

Whether you're a litigator navigating these issues daily or an organization crafting BYOD policies, this discussion provides crucial insights into how courts are approaching this evolving landscape. Judge Rodriguez offers practical advice for early case assessment and emphasizes the importance of substantive conversations between opposing counsel about mobile data preservation before evidence is lost.

Ready to rethink your approach to mobile device discovery? Listen now and join the conversation about how our legal standards must adapt to modern communication realities.

Cases Discussed 

Allergan, Inc. v. Revance Therapeutics, Inc.

Miramontes v. Peraton, Inc.

In re Pork Antitrust Litig.

Suggestion Box 

BBC's You're Dead to Me Podcast 

Thank you for tuning in to Meet and Confer with Kelly Twigger. If you found today’s discussion helpful, don’t forget to subscribe, rate, and leave a review wherever you get your podcasts. For more insights and resources on creating cost-effective discovery strategies leveraging ESI, visit Minerva26 and explore our practical tools, case law library, and on-demand education from the Academy.

Kelly Twigger:

Hi and welcome to the Meet and Confer podcast. I'm your host, kelly Twigger, a practicing attorney, technology lover, software developer and discovery strategist of more than 28 years. Today is the first episode in our newest segment called Mobile Minutes, which covers the gamut of issues dealing with data from mobile devices. This segment is brought to you in partnership with ModeOne Technologies. If you haven't seen Mode One's technology offering remote yet targeted and incredibly fast collections for mobile devices and web-based services, you'll want to check them out by visiting modeone. io Today. I'm thrilled to welcome United States District Judge Xavier Rodriguez to the podcast.

Kelly Twigger:

District Judge Xavier Rodriguez to the podcast. I've had the distinct privilege of knowing Judge Rodriguez for many years, collaborating with him on events like the University of Florida eDiscovery Conference and sharing many meals and insightful conversations along the way. I have so much respect for Judge Rodriguez mostly because he's one of the best humans you'll ever meet. He's kind, thoughtful, incredibly articulate, ridiculously intelligent and very generous with his knowledge and time, both with folks like me and as a professor at St Mary's Law School. His distinguished career spans being an attorney and partner at an AmLaw 100 law firm, serving as a justice on the Texas Supreme Court and now serving as a United States District Judge for the Western District of Texas for the past 20 years. Judge Rodriguez frequently contributes his expertise on e-discovery, artificial intelligence, privacy and many other issues in the law, and stands out as one of the most forward-thinking judges in the country, consistently urging the law to keep pace with technology.

Kelly Twigger:

In this episode, our conversation challenges conventional thinking and dives deeply into a critical and pervasive issue in modern litigation Whether an employer has possession, custody, control over the data stored on an employee's personal mobile device for production and litigation. It's an essential question confronting litigators daily. Let's dive in. I am thrilled to welcome United States District Judge Xavier Rodriguez to the podcast today. Judge, thank you so much for joining me today.

Xavier Rodriguez:

Oh, Kelly, thanks for the invitation.

Kelly Twigger:

We had a few things that we wanted to talk about, and as I was getting ready for today, it occurred to me that you have some very interesting perspectives to bring to the law. You were a practicing lawyer at Fulbright before you became a state Supreme Court justice in Texas and then you joined the federal bench as a United States district judge. Those are pretty different perspectives and I'm curious what your takeaways are from those various roles and how they shed light on how you see matters that come before you in district court.

Xavier Rodriguez:

Yeah, so you know you say it's very different matters. In some ways, you know this job is a little combination of the two. So on a state Supreme Court unlike the US Supreme Court there's some differences, some similarities. But on state Supreme Courts you generally take on cases like the US Supreme Court, where there's a conflict in the law, a conflict among the courts of appeals. But you know there's a lot of discretion depending on which state you're in.

Xavier Rodriguez:

By and large, texas, like most state Supreme Courts, are not error correction courts.

Xavier Rodriguez:

So if the trial court or the Court of Appeals made just a simple error, one party or the other may not like it, you know they may want to try to take it to the higher court, but by and large you're not going to get redress at the high court for simple error correction.

Xavier Rodriguez:

There's always exceptions, you know, and so as it relates to e-discovery and procedure, you know state Supreme Courts have a lot of role through. So rule changes come through the court and we normally delegated it down to an advisory rules committee, just like in our federal system. But you know by and large we have a little more interest in the state courts about procedural rules in the high court. And so you know, if instances occurred, even if it was an error, but if it was something like burdensomeness on the parties because of discovery practices, you know the high courts will generally try to hear those sometimes if they think it's going to set a tone for how they think discovery and trial practice should occur. But yeah, no, it was an interesting time up there. A lot of it was interesting.

Kelly Twigger:

Some of it you know just like all dogs, right, yeah, when you say it's different in that the state courts have more of an interest at the state court level, and those are things that can't really happen at the United States Supreme Court level. There's just too many complex issues that have to be heard there.

Xavier Rodriguez:

You know what?

Kelly Twigger:

Which is interesting, because most of the discovery case law, the issues that we see that are published, are from the federal courts. I mean, I'm sure we see more in state courts than we're able to get our hands on because it's so difficult to get to state law. But that's interesting. And how has that changed, moving into the federal bench at all?

Xavier Rodriguez:

Yeah. So here now I'm Jack of all trades, master of none, as a district judge. You got criminal cases, you got civil cases. If I drew a pie chart for you of our civil workload, it's almost an equal slice of pie for just a variety of matters Employment law, breach of contract, employment, discrimination, intellectual property. It's just, it's a slice and dice of everything. So, and in addition to that, this is where we're somewhat of like an appellate judge we review appeals from the Social Security Administration and we review appeals from the bankruptcy court, and then if you're unsatisfied with the decision that a magistrate judge might have made in a pretrial or discovery matter, then that gets reviewed by us as district judges. So in some ways, you know, we're a trial court. In some ways we're an appellate court.

Kelly Twigger:

When you are reviewing so I'm thinking really more in the context of the discovery-related decisions. What percentage of your cases get assigned to a magistrate initially?

Xavier Rodriguez:

Yeah, so I do things a little different, different and every district court has a different practice. Some courts around the district courts around the country put magistrate judges right on the wheel so they could get an equal chance of getting full assignment to a case. Now, to have a case heard by the magistrate judge from initiation to trial requires consent of the parties, and so under those systems where they go under the wheel, someone has to affirmably object to the magistrate judge being referred. For all matters, including trial, some parties may be hesitant to object.

Kelly Twigger:

Oh yeah, it was always a big decision for our trial teams as to whether or not we were going to consent to the magistrate judge. Yeah, go ahead.

Xavier Rodriguez:

Yeah, and so how we do it around here, though, is so you get randomly assigned to a district judge for your civil case, but then in the cause number we have a slash It'll have XR slash and then initials of a magistrate judge. It'll have XR slash and then initials of a magistrate judge, and so, up front, you know who the magistrate judge will be assigned to the matter if you want to consent to referral, and so I think some parties want to have like little knowledge up front. Well, who might get this and that might put them a little more at ease? I don't know why, but we had got great magistrate judges.

Kelly Twigger:

And so we've been really lucky in that regard. What are the advantages? This is less about discovery, but I'm just curious as long as I've got you is what are the advantages to going to the magistrate over the district judge?

Xavier Rodriguez:

Yeah, the biggest advantage is trial certainty because at any time given Jack of all trades, master of none, right I've got the criminal docket. So in certain districts where there's a lot of criminal work, about 10 courts around the country do over 60% of the nation's criminal workload Southern District of Texas, the Western District of Texas, the Southern District of California, the District of Arizona and, I'm sorry I'm missing one I can't recall. So if you consent to the magistrate judge, they don't have that kind of calendar concerns like we do. Because of the Speedy Trial Act We've got to handle the criminal matters first and if you have a civil case set for the same time you could potentially get bumped. So if you want to trial certain on a certain date, consenting to the magistrate judges will help you get there.

Kelly Twigger:

Yeah, if you want to trial certain on a certain date, consenting to the magistrate judges will help you get there. Yeah, the magistrate's your best option in that situation. All right, let's turn a little bit to our topic du jour, which is thinking about possession, custody or control in the context of data from a mobile device. And, as you and I started talking about this, really it's come up so much whether or not an employer has the ability to collect, produce, look at data from an employee's personal mobile device for purposes of litigation, and there's a weird range of case law decisions out there, particularly in the last few years, on this issue, and I think there's no guidance at all for practitioners right now on what they should be doing, and so we wanted to talk about that. I'm going to start with you, and I know there are two tests that historically have been employed to consider possession, custody or control under Rule 34, the legal right test and the practical ability test. What are those tests and how are they different?

Xavier Rodriguez:

You know maybe we're going to backtrack just one step. And I teach it at a law school, right? So I want to make sure everybody's always on the same page when we start building on topics. And so why does all this matter? I guess, is where I want to start. So everybody I think by now who listens to your podcast, knows that you have a duty to preserve documents when you know, or reasonably should know, that litigation is imminently foreseeable, and so we have this duty to preserve. But preserve what? And so then, we've had, you know, introductions about the scope, and we've talked about sending demand letters to the other side, if you're the plaintiff, or maybe you receive the complaint or the petition, and so you know what the matters are about. So you have a duty to preserve matters that are relevant to whatever the scope of the litigation is, that are not privileged, and so you need to start identifying that Don't forget proportionality.

Xavier Rodriguez:

Yeah, I want to get to proportionality, and so you have a duty to start figuring out. You know what is this relevant data and where is it located, and so, as it pertains to possession, custody or control, you only have a duty to preserve and then later produce documents that are in your possession, custody or control. Now, possession and custody are pretty easy, right, you have the stuff. If you have the data, the document, you have the phone in your hands or in the corporate offices or whatever, you're in possession or custody of it.

Xavier Rodriguez:

So we're really fighting over this word control, and what does this word mean? And, regrettably, leading to a lot of confusion. Federal rule of civil procedure 34 does not define control, and so this is where we've had courts all wrestling, coming up with different standards as to whether or not it means the practical ability to get something or a legal right, and then, regrettably, now courts are sort of mismatching both sets and sort of creating this new hybrid animal, which really helps and complicates things. So it's important because we need to figure out what do we actually have to identify and preserve and then later produce. So if it was just easy, right.

Kelly Twigger:

If it was just easy, we wouldn't be talking.

Xavier Rodriguez:

Yeah. So let's just focus on these two standards first and let's just focus on mobile devices, because it's a big hot issue right now, because that's, frankly, where a lot of the evidence is In jurisdictions that have this practical ability test, most notably in the Second Circuit, the East Coast. What does that mean? Well, it means, like, let's say, we have an antitrust matter and the general counsel, who's on the 20th floor, gets a copy of the complaint and says oh, we've been sued for antitrust.

Xavier Rodriguez:

If he has the practical ability just to walk down the hallway to the CEO's office and say hey, boss, here's a complaint that we just got sued and in there they've said that you have been colluding with trying to fix prices. We're going to need to nail down you know the potential evidence to this case because we have a duty to preserve it. Can I have your cell phone? In those practical ability tests? That's sort of what they're alluding to. Alluding to, you have the practical ability just to walk down the hall, grab somebody's phone. Then you have to review it, identify it, preserve it and then later potentially produce it.

Kelly Twigger:

Can I stop you there for a minute, because I'm not sure that's how most folks view the practical ability test, because why can't I? I mean, what if I'm the CEO and I say, no, you can't have?

Xavier Rodriguez:

it, yeah, yeah. So let me, you're absolutely right. Let me, let me identify the two big tests, and then let's talk about.

Kelly Twigger:

I'm sorry I got ahead of myself oh no, no, no, not at all.

Xavier Rodriguez:

Let's talk about how it gets, because you're, you're right on track. That's the second test, the legal right of control test. In those jurisdictions they say you have to have the legal right to be able to ask somebody for the phone and so you might do business with a third party vendor. And in that contractual agreement you have with a third party vendor, there's a clause in there that says hey, if we get sued and we need data from you, you agree that you're going to provide us relevant data. So you have a legal right to be able to go to that third party and get data. So those are the two big tests. It's if it was so easy. So you know, practical ability has been highly criticized. Because, for what you just raised, what happens if the employee says no, you know, this phone's not coming off my dead, cold hands. It's real hard to get a phone off somebody's hands, right? We're glued to those phones, right, you go into a panic when you don't have your phone with you.

Kelly Twigger:

The privacy considerations right.

Xavier Rodriguez:

What's the scope?

Kelly Twigger:

of what you're going to look at.

Xavier Rodriguez:

Yeah, I think you know they're concerned about the privacy. I think just the whole attitude, though, that I'm going to be gone without my phone for a couple hours, that alone, you know but in truth, technology has changed a little bit of this analysis and we can talk about that.

Kelly Twigger:

But you know it, doesn't it? No longer the phone no longer has to come out of your possession. There's technology that allows it to be captured right as you're sitting here talking to me. We could, you know we could.

Xavier Rodriguez:

we could have a Wi-Fi you know strong enough and we could just send out the signals and download remotely. There's any number of ways that are quicker, but that goes to the privacy rights right. As Carpenter and the United States Supreme Court said. The cell phones now are the repository of a lot of information, and so people have a little problem about that. Why do you need my phone? What are you going to get off my phone? Okay, well, you just need the text messages. Is there a way that you can satisfy me that only the text messages for this day at issue are going to be turned over, and so you have some very difficult conversations.

Xavier Rodriguez:

So we got those issues on the practical ability test. Then on the legal right test, you know we may not have those same issues, but the criticism from that test is that's giving away from the responding party the obligation to produce a lot of data that may be actually very relevant in the case. So those are the two tensions that are going on in these cases. I don't follow. What do you mean in terms of legal right? Yeah, so those are the two tensions that are going on in these cases.

Kelly Twigger:

I don't follow. What do you mean in terms of legal right?

Xavier Rodriguez:

Yeah, so okay, legal right. Let's say you have a employment discrimination case. As you well know, esi issues are big in employment discrimination cases. If you don't have any kind of BYOD policy that has any kind of specificity, the manager who's accused of sexual harassment, who's accused of potentially sending vulgar text or images, you know, we the employer, and that scenario, this legal right, would not have to produce any content out of that manager's phone.

Kelly Twigger:

Because there's nothing establishing that legal right, whether it's a policy or an agreement or something like that.

Xavier Rodriguez:

Absolutely so. Those are the tensions that are going on. This is putting a lot of on one end. This is putting a lot of perhaps expense burden One end. This is putting a lot of perhaps expense burden complexity to a company producing under the practical ability. The other tension, going in from the very other end of the spectrum, is this may allow potentially very relevant evidence to not be produced. Now, I say not be produced.

Xavier Rodriguez:

What will happen in those scenarios is if, under Rule 34, we have a party, a party has an obligation to identify, preserve and later's just say you don't have the practical ability to get it, you're going to have to send, as the requester, a subpoena under Rule 45 to a third party. So you could ask yourself well, what's wrong with going that direction? Well, again, nothing's easy. Number of problems One is okay now we're putting on the requesting party, generally a plaintiff, the additional cost burdens to sending out subpoenas to third parties. There's additional cost burdens. Now we're putting the burden on some third party now to either object or comply with the subpoena, and so they're a third party. They're going hey, why do I have to bear this expense? That's another problem. The big problem I see, however, is by the time we figure out who is either in a leap, who's got a legal right or a practical ability, and we find out that neither test applies and a subpoena must be issued, we've got to worry about data spoilation. That's right.

Kelly Twigger:

Neither test applies and a subpoena must be issued. We've got to worry about data spoilation.

Xavier Rodriguez:

That's right, because time has gone, time has flown, you know, all of a sudden here, months have gotten by, if not years, and then all of a sudden data is no longer there. And as to this third party, they're under no obligation to keep any data until such time as they've been subpoenaed. So we got a problem here about there may be a law.

Kelly Twigger:

You raise a huge point, which is that a third party's duty to preserve doesn't arise until they receive a subpoena or have knowledge of a subpoena, right In the sort of reasonable anticipation of Rule 26. And that's critical For me. That's one of the reasons that we sit down and say let's talk about the facts and allegations of the case, because you know right away who the people are who have mobile device data, and text messages are the thing that we see most often In the criminal context. You've got a lot more photos, instant messages, you know, and we're starting to see a lot more of that in civil. I always find, in the massive amount of time I spend in case law, that what starts in criminal then comes over to civil when it comes to the discovery-related issues.

Kelly Twigger:

So, in terms of those tests, though, judge a number of the cases that I've looked at on the case of the week over the last couple of years and I sent you a few of them for today they were like the Enray-Pork decision, the Allergan decision, which we just recently covered, and then the Miramontes decision, which is sort of a bit of an outlier. None of those three decisions really look at those tests. They say the tests exist? Well, miramontes doesn't. But then they kind of go either they're met or they don't say why, or they don't really talk about them at all. They just make a decision about possession, custody or control without discussing the tests. So where are we? How do we have guidance as practitioners to come to a court like yours and say, judge, we don't have possession, custody or control, or we do yeah.

Xavier Rodriguez:

So, boy, how do I even respond to that? So you're on point, because I was mentioning this mix mash of you know, courts don't like these to be pigeonholed into these things. You know, all of a sudden we see a legal right perhaps you know argument being advanced and we see that there's going to be slippage of irrelevant data. See that there's going to be slippage of irrelevant data and then maybe we're worried about although I've never seen anybody articulate this, but maybe we're worried about in the back of our mind, roll one speedy, just speedy and inexpensive, and we're thinking why are we going through all the hassles of sending out subpoenas and bothering third parties here?

Xavier Rodriguez:

You all just produce it and so a lot of think of that is going to the back of the minds of a lot of judges. Let's just get there as opposed to the fight. Now, how do we do this? You know, I think, one big one, besides the uncertainty of the law let me flip it on the lawyers I think everybody's making a huge mistake in a lot of cases by not having good talks. I'm not talking sending an email and sending a demand letter and wrote language about preserve this and preserve that. You know that's going to get you nowhere if we're going to ultimately have a fight over this possession, custody or control and people need to start picking up the phone and just to, even before litigation is filed, or certainly right when the litigation is served, and having just a conversation. Now in the federal court we have this mandatory meet and confer requirement.

Xavier Rodriguez:

A lot of state courts don't, but that doesn't mean you can't and you're probably it behooves you to do so and just start talking about hey, I'm under the impression that the phone text messages from the following individuals are probably going to be very relevant. Are you going to produce those or are we going to have to send subpoenas? I mean, I would start asking those kind of questions really early on, which means, unfortunately, we have to be a lot more prepared as lawyers than what I see. I do my own Rule 16 conferences and I'm amazed at just the lack of preparation that the parties are ready to discuss the case at that stage. I mean, by that time the lawsuit's already been filed, An answer has been filed, A month or two has already slipped by before I can schedule you to come in the courtroom and, like no one can answer questions, Right, and, as we mentioned before, the data loss problem is is so prominent, right.

Kelly Twigger:

Even in that month, somebody goes and gets their phone replaced. You know, and I'm personally always amazed at the ability of someone to go get their phone replaced and somehow lose all of the text messages that used to be on the phone previously.

Xavier Rodriguez:

Hey well, they just announced the issuance of a new series of phones. Here I want the latest, greatest.

Kelly Twigger:

Right. Well, yeah, but it's really easy to keep your text messages from phone to phone. It's harder to not do that, I think. But well, I think that's interesting because essentially what we're talking about is courts don't really like these bright line rules. It seems to me that these bright line rules that we have the practical ability, legal right, they don't really fit with possession, custody or control with mobile device data.

Kelly Twigger:

In the way that we work now, especially since COVID I mean, since COVID, the use of personal devices has exploded. We work remotely, we're texting people all the time hey, you haven't shown up to this meeting, let me just send them a quick text and see what's going on. And oh, hey, I'm having trouble logging in. So there's so much information that's out there and available. I can't say that I've had a case in the last 10 years that didn't involve device. Not 10 years, five years from a mobile device, and you know probably 50% of them before the last five years.

Kelly Twigger:

But and so we're talking about text messages, we're talking about instant messages like a WhatsApp, we're talking about social media, which we probably wouldn't collect from a mobile device, and so it's hard as a lawyer to advise your clients on these things. Should you have a policy? If you have a policy, then you can rely on it to argue possession, custody or control. That's sort of the NRAP work case and a little bit of the Allergan case. But if you don't have, if you have that policy, you still have the ability to not argue possession, custody or control if it's more cost-effective and more protection for the witness, who may still be your employee, to provide that information but in a really cost-effective and meaningful way.

Xavier Rodriguez:

I'm one I'm buying there with these BYOB policies and just other policies, it just because you know, in one way they want to okay, we have the right to, you know, ask you for your mobile device for emails and so forth, and then a lot of them will carve out the text messages because at some point then the human resources people will get involved and say this is going to be too much of a morale issue, it's going to be, you know, employee retention issues, going to be too much of a privacy issue, and so they sort of slice it off from the other end of the spectrum and it's like, well, heck, you and I know that that's where all the really juicy data is right. And so you're a judge sitting there and, boy, this doesn't sound right. You know that all of a sudden you can get the emails, but you've carved out text and sometimes, in some cases, they may not pass the smell test. And so, yeah, you're asking me what to tell employers and I'm saying, or companies that primarily has a primary repositories of data. And it's like you just do your best, I think you talk to folks figure out who's got data, who's willing to give it up.

Xavier Rodriguez:

Some people might not want to give it up. You might want to say, hey, well, okay, I understand you don't want to give it up, just want to let you know. You probably ought to be anticipating that the other side's going to send you a subpoena. Hey, so sorry, you're going to have to get your own lawyer to fight it if you want to fight it. But you know, if you want to go this route, we're willing to help you out. That may be the gentle push to get the reluctant aboard. You can fight it in court and then take your chances. You know you would like to think that there's some certainty in the law, but there is not. I really want the advisory rules committee to, if not, change the rule. Usual great program is doing some papers this year that he'd like to publish, and so he asked me hey, do you want to write one? And I got hey.

Xavier Rodriguez:

I'm thinking about possession, custody and control right now I'm going to write a paper there advocating to the Advisory Rules Committee that we need to provide specificity here.

Kelly Twigger:

Yeah, there needs to be a bit more guidance, and I think we're finding that in a number of areas with the federal rules, that what we had back in 2006 and some changes made in 2015 aren't keeping up with technology and the way that we're using technology to create, store, send and receive information and, as a result, there's just not enough governance for exactly how things should work.

Kelly Twigger:

And you know, there's always the situation where you've got one party who's got more resources than the other party and they can make all kinds of arguments that the other party can't really afford to counteract and therefore oftentimes ends up without data that they should have.

Kelly Twigger:

There's other times. One of the cases that we've covered on Case of the Week recently was the City of Atlanta versus Mazier, and I guess that's the other way around Mazier versus City of Atlanta and in that situation there was a supervisor who had text messages that were relevant to a discrimination case and the city didn't preserve them. They just didn't keep them, and so there was a spoliation issue, but the issue of possession, custody or control of those text messages never even came up in the case, and so it's a what's weird for me as I read the case laws there's no consistency in arguments that are made, there's no consistency in how possession, custody or control is applied, and I 100% agree with you that the right way to handle it is to have that early discovery strategy conference at the outset, where you're both putting your cards on the table and really understanding what's out there. And I think one of the roadblocks to that is lack of knowledge by counsel as to how to handle these issues.

Xavier Rodriguez:

Yeah, so you know that Mazier case is kind of interesting. Apparently, in that case, what got the employee fired happened on April 29 of 2020, 2021. And so we're interested in finding out. Did she engage in some inappropriate misconduct on that day At a?

Kelly Twigger:

meeting.

Xavier Rodriguez:

Yeah, at a meeting and whether or not they were texting each other. The other employees were texting each other, but the letter asking for a legal hold to be implemented, the plaintiff's lawyer sent that months ahead of time, november the year before, yeah, and so it's like this was a funny posture for this case. Now you would figure that the employer I'm not going to pick on the city of Atlanta here, but just an employer if you'd already gotten that kind of a letter, you would already be sort of a little on heightened edge about keeping stuff. And so when the supervisor leaves with the work-issued phone, the company-issued phone gets wiped and so off goes the April 29 data. But you know, no one ever talks about possession custody control. So obviously that was in the possession because it's city owned property and so I think that's why PCC didn't come up in that case. But there's just like vague allusions to a private phone and I'm all like, well, what's with the private?

Kelly Twigger:

phone. It was really that. That's another thing. That's hard right is we're trying to use case law to make arguments, and yet the case law is not really clear on the facts and so, therefore, the decision that the judge makes. Oftentimes when I'm doing case of the week, I'm going well, there's nothing about this in the decision. I'm going to guess A, B and C, but you have to go back to the briefs and know all the stuff that was in front of the judge. It's hard because these are discovery decisions, are all incredibly fact-based, and when the facts that you think ought to be part of the analysis are not included in the decision, it's hard to reconcile it.

Xavier Rodriguez:

On the writing end of this I can tell you you know at least. What I wrestle with when I'm writing orders is like, well, you want to make it at least, you want to make it complete, but you don't want to over-inundate it with such that it's just boring, that's right. Right. You get these 150-page in e-discovery and it's like, oh, my God, it's like you know, put me to sleep. It's just like, oh, there's one thing to be complete, and then there's overkill. And so, as the writer, you're always wrestling with what do I throw in and what can I keep out?

Kelly Twigger:

And I have no doubt of that. I'm only on the other side, trying to make sense of it from the other end. I'm going to switch us up just a little bit, but stay on the issue of possession, custody or control. The case that I just covered this week was a Vaughn versus the Solera Holdings case, and the reason that this one's interesting is because there was an issue of production of Slack messages in that case. Now, slack's not necessarily a mobile application. I can access it on my mobile phone, but I wouldn't collect it from there.

Kelly Twigger:

In that case, the defendant argued that the plan that they had for Slack didn't allow for them to export messages and, as a result, the data was not in their possession, custody or control, and the courts, really without any analysis at all, said okay, I guess it's not in your possession, custody or control if you can't export it. And the reason that that happened. You know we're talking about mobile, but that's also relevant for things like Signal. Signal doesn't allow you to export data. Trying to collect Signal data right now is a real challenge for anybody trying to do it, and so is that where we're going that if you can't export data from an application, you don't have possession, custody or control over it, even though the data is relevant and proportional under Rule 26.

Xavier Rodriguez:

Yeah, you help me remember.

Xavier Rodriguez:

There was a case a few months ago and so the company had only gotten the basic version of whatever platform and they didn't pay for the more higher-priced platform or higher price platform that would have allowed for retention or access to deleted or archived stuff.

Xavier Rodriguez:

Can't remember what the case is, but in any event, I sort of analogize that scenario to this. It's like the first thing that came to my mind when I was looking at that bond case. It's like, okay, it seems that you've got a certain version of this Slack platform, but doesn't that I mean I don't think that absolves you of going back to Slack and saying, hey, I've got this version, I can't seem to extract stuff. Is there any way I can pay for an up up charge to the greater version now and access my old storage data from you all? I mean I, I think you're, you're in possession or cut or custody of that data. It's it was your platform that you license to be able to work. So if there's any data from that provider and there's a means to get that archive data out, I think you're under obligation to at least try to do that. You correct me if I'm wrong.

Kelly Twigger:

No, that would have been my sense too, but that's not what the judge found here.

Xavier Rodriguez:

Yeah, well, you know, I don't know if he found it, he just like, just as you mentioned, sort of yeah yeah, and so yeah, I wasn't sure that to me would be a failing of the failing of the, the council right.

Kelly Twigger:

I mean, I don't think it's reasonable for us to come to you even you, who's probably as as informed about e-discovery issues and sources of esi as as most judges in this country that to come to you and expect you to understand that there are different levels of slack plans and whether those can be dealt with, and even what the cost would be. Now I could see in this case, if I had a party on the other side who made this argument to me. My response would be look, go and understand what the cost is to be able to export this information, to upgrade the plan for a month or whatever it takes to be able to export this information. I know there are APIs from Slack that allow you to do that and partners that are specifically listed on Slack's website to allow you to do that, and then come back to me and let's discuss what that cost is.

Xavier Rodriguez:

And then we can talk proportionality Right and that's exactly right.

Kelly Twigger:

And then either we do a cost shifting Right, so we'll agree to split the cost with you or whatever to get the data. But in this particular instance, the judge just said no possession custody control, no data.

Xavier Rodriguez:

Yeah. And it was a district judge, so Well, I hate to disagree, especially a district judge and a fellow Texan, but I'm not sure about this one.

Kelly Twigger:

Yeah, yeah, yeah, sorry about that, fellow Texans, but yeah, it's, it's, I don't know. I think for me, the whole thing comes down to the rules and the interpretation of the rules are not in pace with technology and the way that it's impacting data for purposes of discovery, and we're we are so still focused on the volumes and complexity of what we're dealing with that we're not really focusing on the real issues that allow us to get to the information that's relevant for a particular case, and that's a little bit frustrating to me.

Xavier Rodriguez:

So you're getting me further off topic, but something that you just said triggered this thought. One thing that I think we're doing as judges and law clerks and chambers are doing a really bad job about is we instinctively go to the law instead of current technology, and what I mean by that. Some issue comes up, and because we as lawyers are all trained to look up the cases, voila. We initially just start rushing over to 10 year old cases and say look, 10 years ago it said this, even though the current state of technology makes all that irrelevant and obsolete, and so we are really not well suited to understanding. I mean, you got to keep up with it. It's hard. I understand that Boy. You know, I try to keep up, I teach, and it's every day something. There's a new app, and. But I think we've got to do a lot better job of of of not relying on old law and understanding the technology that's right before us.

Kelly Twigger:

I think that point that you make is excellent and it's in the Allergan case in particular. The analysis that I did on the case of the week was specifically that the cases that he looked at were from before 2020, when we had whole COVID and the way work changed and everything, and I think that's a tremendous point. I think for practitioners out there to understand that you need to be looking at the most recent case law, and the case law that's coming out right now is what you need to be looking in terms of things. But, that being said, right, the Miramontes decision, which is completely you know, we talked about this a little bit in advance, prep for the call the Miramonte's decision was the one where I think it was Judge Boyle, you know she essentially said that the way that we work today is completely different, and I'm just going to do part of this quote.

Kelly Twigger:

Today, many, if not most, employees use cell phones for work. While some companies issue work devices, others, including Periton, do not. Under Periton's view, a company could effectively shield a significant amount of its employees' business communications from discovery simply by allowing its employees to conduct business on their personal phones and for this reason, the court agrees with other courts that have found electronically stored information on employees' personal devices may be under the control of their employer in certain circumstances.

Xavier Rodriguez:

But no analysis of those two tests, no no, because what that statement does is it sort of ignores both tests. Right, there's no legal right. Just because there's business use doesn't mean there's legal right and and so practical ability. I mean that goes back down to the tension. Okay, well, you know, if they're using their personal phones for company business, what happens when they say no. You know what happens when they quit, what happens when they get fired and take their phone with them. That doesn't help us understand at all what the preservation obligations are, but it does. That's a very good snippet of just current reality that I mean I see mobile use in just all types of cases now, like even wage and hour cases. Somebody will say, hey, no, I'm an employee, not an independent contractor. The boss is directing all aspects of my control. He texted me daily Are you here, are you there? I want you here. And so the text messages all become relevant yeah, it's just, it's, it's all pervasive now.

Kelly Twigger:

And there's so many questions, right? Is it a company issued phone or is it a personal phone? Is there a policy from the company about bring your own device, and does the policy specify certain types of data that the company can review at any data that you would view from the personal mobile device, or is it data that you would view on a company system like email? Right, email is not normally collected from mobile devices because you only get a piece of the file that actually gets loaded on the mobile device. We collect that from the system where it actually originates, from the email system. You're just viewing it on a mobile device, but other data is only physically available from the device, on a mobile device, but other data is only physically available from the device Text messages, you know WhatsApp, a number of different applications that are only available from the device, and so I don't know. This is a huge issue and I think it only gets more pervasive as we go along.

Kelly Twigger:

And when you write your paper, I hope to heaven it makes the Federal Rules Commission kind of look at. I think we really need to do something here, because Judge Rodriguez says so.

Xavier Rodriguez:

I doubt that's going to happen, but you know, I've been playing around with just hey, maybe a whole brand new test agency, right? You know, in Title VII and in a whole bunch of other contexts, we've always made managers, you know, as an agent of the company. We made the company liable for the managerial actions. And, you know, maybe that's at least a starting point for employers or companies. Just to think about, hey, if whoever has the mobile device, even if it's personal, if they're acting as an agent of you, well then in all likelihood, you know, maybe you ought to start asking for that data from that person, preserving it and later potentially producing it.

Kelly Twigger:

I like that conceptually. Here's one thing I immediately see, and that is every all of the federal circuits have different laws regarding agency and different laws regarding privilege around agency.

Xavier Rodriguez:

There's no easy answers to any of this.

Kelly Twigger:

No, it's so complicated. It's so complicated, but this has been an amazing conversation. Thank you so much, judge. I appreciate it. One before we sign off. I think I mentioned this to you. This is our inaugural episode of the Meet and Confer podcast. I'm so ecstatic that you were able to join us today, but I wanted to implement a little something that's kind of different, called the Suggestion Box, and you have free reign to provide whatever suggestions you want, whether it's food, television, travel, anything because I know that you have such an incredible resume of things that you've done in your life and places you've been and seen. I'd love for you to share some of that. So what are your suggestions to folks for the suggestion box?

Xavier Rodriguez:

So it's so easy to get wrapped up in the news of the day and the trials of practice and everything else. My suggestion is you know there's got to be some pathway out. You know whether it's taking a jog on the weekends and going for a long walk or jog or travel. But you know you, you've got to get away from the pressures of both work and and everything else we're facing and then just like, veg out. I, when I do all these little jogs that I do on the weekends and work out. I don't tune into music generally but podcast right. But as great as this podcast is, you know, if I need to veg out and that's because I'm a history fanatic. There's a great number of BBC podcasts. They're really witty. One's called You're Dead to Me.

Xavier Rodriguez:

And they just take random dead historical figures and do just a great little witty analysis of it and it's just a great way to tune out.

Kelly Twigger:

Oh, I love that one. I'm going to check that one out. That sort of reminds me of when we used to listen to Paul Harvey's the Rest of the Story.

Xavier Rodriguez:

Yeah.

Kelly Twigger:

Yeah, yeah, that's fantastic. Thanks so much, judge. Judge, I really appreciate you being here today. Thanks so much for joining us. Look forward to the paper, so we'll try to share that with the audience as well. If and when that comes out, and if I can help in any way, you know where to reach me.

Xavier Rodriguez:

Thank you, good to see you and see you soon.

Kelly Twigger:

Wow, what a fantastic conversation with Judge Rodriguez to wrap our first episode of the Newly Branded Meet and Convert podcast. I think, in a lot of ways, our episode asks more questions, or poses more questions than it answers for you on the concepts of possession, custody or control, and I'll kick this off to you to really take the conversation that we had here and go to your organizations, go to your clients and really understand what is the position that you want to be able to your organizations, go to your clients and really understand what is the position that you want to be able to take when it comes to mobile device data and what is the best way to construct policies, procedures, process to be able to take that position. Now, obviously, that's going to change based on the facts of each case, but there are overarching decisions that you will want to make and, as our discussion illuminates, there's not a lot of guidance out there on what the best approach is. So not only do you need to take that position in an educated way, but you need to be able to inform your counsel so that your positions are consistently applied across all of your discovery matters in litigation. And that's a wrap.

Kelly Twigger:

Once again, thanks to our sponsor, modeone Technologies, with whom we worked together to create the Mobile Minute segment that kicked off with this episode. If you're interested in learning more about ModeOne Technologies' remote mobile device collection tool, please visit them at modeoneio. Please visit them at mode1.io. We'll be sure to include Judge Rodriguez's suggestion from the You're Dead to Me podcast, as well as all the decisions that we discussed in the show notes below, and thanks for joining us so much on this episode. If you've got any feedback for us for the podcast or topics that you'd like to see covered, please feel free to reach out to me at podcasts at minerva26.com and we'll get those taken care of. Finally, if you've enjoyed this podcast, we would love if you could share it with your colleagues, friends, other folks who may enjoy it, and also subscribe on your favorite podcasting platform or leave us a review. Thanks so much.

People on this episode

Head Shot

Kelly Twigger

Host