Phillip Favro, Consultant, Information Governance & eDiscovery
New eDiscovery 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., No. 18-CV-1776 (JRT/HB), 2022 WL 972401 (D. Minn. Mar. 31, 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 (“Hormel”) 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. Judge Bowbeer next determined that Hormel did not have the “practical ability” to require its employees to turn over relevant, responsive text messages. While Hormel could “ask” its employees to preserve and disclose relevant text messages, it could not “demand” that employees do so given the terms of the BYOD policy (emphasis in original). Judge Bowbeer also reasoned that Hormel “should not be compelled to terminate or threaten employees who refuse to turn over their devices for preservation or collection.” Judge Bowbeer eventually directed the employees to produce relevant texts while ordering Hormel and plaintiffs to equally bear the costs of imaging, extraction, conversion, and storage of data from the employees’ phones.
As Pork makes clear, provisions memorialized in company BYOD policies do matter. Courts may honor reasonable company BYOD policies and practices and not impose an undue burden on organizations to be responsible in the discovery process for communications or other documents employees generate or receive outside the scope of those policies. See also La Belle v. Barclays Cap. Inc., 340 F.R.D. 74 (S.D.N.Y. 2022) (holding defendant was under no obligation to initially search for relevant text messages on its employees’ personal phones given a company policy that forbade employee communications on personal devices regarding work issues).
2. Adverse Inference Instructions to Juries— Alabama Aircraft Indus., Inc. v. Boeing Co., No. 20-11141, 2022 WL 433457 (11th Cir. Feb. 14, 2022).
In this litigation between aerospace companies, the trial court informed the jury that certain ESI had been deleted, was unavailable as evidence, and that “it is for you to decide what happened and why it happened.” If the jury found that defendant The Boeing Company (“Boeing”) anticipated litigation and had deleted the missing ESI with an intent to deprive, the court further informed the jury that “you may infer that the lost information was unfavorable to Boeing.” The court further instructed the jury that as to the finding of intent to deprive and the resulting inference, “it is for you to decide what force and effect to give it in light of all of the evidence in the case” as “you are the judge of the facts as to what happened in this case, including what happened to these electronic documents, and why it happened.”
After the jury returned a unanimous verdict against Boeing on the merits, Boeing argued on appeal that it was an error for the court to read the adverse-inference instruction to the jury. The U.S. Court of Appeals for the Eleventh Circuit found no abuse of discretion in the trial court’s instruction as it was Boeing that had asked the court to “instruct the jury to make the finding the district court had already made—that Boeing acted with the intent to deprive” before drawing the inference. The Eleventh Circuit held that the instruction “correctly stated the law and did not mislead the jury.” It also reasoned that the trial court could have “imposed an even harsher sanction, allowing the jury to simply draw the adverse inference.” In so doing, the Eleventh Circuit observed that the advisory committee note provided that such a finding “may be made by the court” when ruling on a pretrial motion or when deciding whether to give an adverse inference at trial.
The result from Alabama Aircraft mirrors that from most cases where the court issues an adverse inference instruction resulting from evidence spoliation or otherwise allows the jury to learn about the destruction of ESI: The jury generally finds against the party who failed to preserve relevant ESI. Alabama Aircraft reinforces the notion that ESI spoliation is generally eDiscovery kryptonite to the claims or defenses—no matter how meritorious—of a party who fails to preserve relevant ESI. With this generally being the case, parties and their counsel would be well served to develop information-related policies and practices that can reasonably safeguard ESI from deletion when litigation is reasonably anticipated or otherwise help them mitigate the harm from ESI spoliation events.