July 23, 2025 • 47 mins
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.
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Transcript
Episode Transcript
Available transcripts are automatically generated. Complete accuracy is not guaranteed.
Kelly Twigger (00:00):
Hi and welcome to the Meet and Confer podcast.
I'm your host, kelly Twigger, apracticing attorney, technology
lover, software developer anddiscovery strategist of more
than 28 years.
Today is the first episode inour newest segment called Mobile
Minutes, which covers the gamutof issues dealing with data
from mobile devices.
This segment is brought to youin partnership with ModeOne
(00:23):
Technologies.
If you haven't seen Mode One'stechnology offering remote yet
targeted and incredibly fastcollections for mobile devices
and web-based services, you'llwant to check them out by
visiting modeone.
io Today.
I'm thrilled to welcome UnitedStates District Judge Xavier
Rodriguez to the podcast.
(00:45):
District Judge Xavier Rodriguezto the podcast.
I've had the distinct privilegeof knowing Judge Rodriguez for
many years, collaborating withhim on events like the
University of Florida eDiscoveryConference and sharing many
meals and insightfulconversations along the way.
I have so much respect forJudge Rodriguez mostly because
he's one of the best humansyou'll ever meet.
He's kind, thoughtful,incredibly articulate,
ridiculously intelligent andvery generous with his knowledge
(01:07):
and time, both with folks likeme and as a professor at St
Mary's Law School.
His distinguished career spansbeing an attorney and partner at
an AmLaw 100 law firm, servingas a justice on the Texas
Supreme Court and now serving asa United States District Judge
for the Western District ofTexas for the past 20 years.
Judge Rodriguez frequentlycontributes his expertise on
(01:29):
e-discovery, artificialintelligence, privacy and many
other issues in the law, andstands out as one of the most
forward-thinking judges in thecountry, consistently urging the
law to keep pace withtechnology.
In this episode, ourconversation challenges
conventional thinking and divesdeeply into a critical and
pervasive issue in modernlitigation Whether an employer
(01:52):
has possession, custody, controlover the data stored on an
employee's personal mobiledevice for production and
litigation.
It's an essential questionconfronting litigators daily.
Let's dive in.
I am thrilled to welcome UnitedStates District Judge Xavier
Rodriguez to the podcast today.
(02:14):
Judge, thank you so much forjoining me today.
Xavier Rodriguez (02:17):
Oh, Kelly, thanks for the invitation.
Kelly Twigger (02:19):
We had a few things that we wanted to talk
about, and as I was gettingready for today, it occurred to
me that you have some veryinteresting perspectives to
bring to the law.
You were a practicing lawyer atFulbright before you became a
state Supreme Court justice inTexas and then you joined the
federal bench as a United Statesdistrict judge.
(02:39):
Those are pretty differentperspectives and I'm curious
what your takeaways are fromthose various roles and how they
shed light on how you seematters that come before you in
district court.
Xavier Rodriguez (02:53):
Yeah, so you know you say it's very different
matters.
In some ways, you know this jobis a little combination of the
two.
So on a state Supreme Courtunlike the US Supreme Court
there's some differences, somesimilarities.
But on state Supreme Courts yougenerally take on cases like
the US Supreme Court, wherethere's a conflict in the law, a
(03:14):
conflict among the courts ofappeals.
But you know there's a lot ofdiscretion depending on which
state you're in.
By and large, texas, like moststate Supreme Courts, are not
error correction courts.
So if the trial court or theCourt of Appeals made just a
simple error, one party or theother may not like it, you know
they may want to try to take itto the higher court, but by and
(03:36):
large you're not going to getredress at the high court for
simple error correction.
There's always exceptions, youknow, and so as it relates to
e-discovery and procedure, youknow state Supreme Courts have a
lot of role through.
So rule changes come throughthe court and we normally
(03:57):
delegated it down to an advisoryrules committee, just like in
our federal system.
But you know by and large wehave a little more interest in
the state courts aboutprocedural rules in the high
court.
And so you know, if instancesoccurred, even if it was an
error, but if it was somethinglike burdensomeness on the
parties because of discoverypractices, you know the high
(04:21):
courts will generally try tohear those sometimes if they
think it's going to set a tonefor how they think discovery and
trial practice should occur.
But yeah, no, it was aninteresting time up there.
A lot of it was interesting.
Kelly Twigger (04:36):
Some of it you know just like all dogs, right,
yeah, when you say it'sdifferent in that the state
courts have more of an interestat the state court level, and
those are things that can'treally happen at the United
States Supreme Court level.
There's just too many complexissues that have to be heard
there.
Xavier Rodriguez (04:52):
You know what?
Kelly Twigger (04:53):
Which is interesting, because most of the
discovery case law, the issuesthat we see that are published,
are from the federal courts.
I mean, I'm sure we see more instate courts than we're able to
get our hands on because it'sso difficult to get to state law
.
But that's interesting.
And how has that changed,moving into the federal bench at
all?
Xavier Rodriguez (05:12):
Yeah.
So here now I'm Jack of alltrades, master of none, as a
district judge.
You got criminal cases, you gotcivil cases.
If I drew a pie chart for youof our civil workload, it's
almost an equal slice of pie forjust a variety of matters
Employment law, breach ofcontract, employment,
(05:34):
discrimination, intellectualproperty.
It's just, it's a slice anddice of everything.
So, and in addition to that,this is where we're somewhat of
like an appellate judge wereview appeals from the Social
Security Administration and wereview appeals from the
bankruptcy court, and then ifyou're unsatisfied with the
(05:54):
decision that a magistrate judgemight have made in a pretrial
or discovery matter, then thatgets reviewed by us as district
judges.
So in some ways, you know,we're a trial court.
In some ways we're an appellatecourt.
Kelly Twigger (06:11):
When you are reviewing so I'm thinking really
more in the context of thediscovery-related decisions.
What percentage of your casesget assigned to a magistrate
initially?
Xavier Rodriguez (06:21):
Yeah, so I do things a little different,
different and every districtcourt has a different practice.
Some courts around the districtcourts around the country put
magistrate judges right on thewheel so they could get an equal
chance of getting fullassignment to a case.
Now, to have a case heard bythe magistrate judge from
(06:42):
initiation to trial requiresconsent of the parties, and so
under those systems where theygo under the wheel, someone has
to affirmably object to themagistrate judge being referred.
For all matters, includingtrial, some parties may be
hesitant to object.
Kelly Twigger (07:00):
Oh yeah, it was always a big decision for our
trial teams as to whether or notwe were going to consent to the
magistrate judge.
Yeah, go ahead.
Xavier Rodriguez (07:09):
Yeah, and so how we do it around here, though
, is so you get randomlyassigned to a district judge for
your civil case, but then inthe cause number we have a slash
It'll have XR slash and theninitials of a magistrate judge.
It'll have XR slash and theninitials of a magistrate judge,
and so, up front, you know whothe magistrate judge will be
assigned to the matter if youwant to consent to referral, and
(07:32):
so I think some parties want tohave like little knowledge up
front.
Well, who might get this andthat might put them a little
more at ease?
I don't know why, but we hadgot great magistrate judges.
Kelly Twigger (07:45):
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 theadvantages to going to the
magistrate over the districtjudge?
Xavier Rodriguez (07:55):
Yeah, the biggest advantage is trial
certainty because at any timegiven Jack of all trades, master
of none, right I've got thecriminal docket.
So in certain districts wherethere's a lot of criminal work,
about 10 courts around thecountry do over 60% of the
nation's criminal workloadSouthern District of Texas, the
(08:17):
Western District of Texas, theSouthern District of California,
the District of Arizona and,I'm sorry I'm missing one I
can't recall.
So if you consent to themagistrate judge, they don't
have that kind of calendarconcerns like we do.
Because of the Speedy Trial ActWe've got to handle the
criminal matters first and ifyou have a civil case set for
(08:38):
the same time you couldpotentially get bumped.
So if you want to trial certainon a certain date, consenting
to the magistrate judges willhelp you get there.
Kelly Twigger (08:47):
Yeah, if you want to trial certain on a certain
date, consenting to themagistrate judges will help you
get there.
Yeah, the magistrate's yourbest option in that situation.
All right, let's turn a littlebit to our topic du jour, which
is thinking about possession,custody or control in the
context of data from a mobiledevice.
And, as you and I startedtalking about this, really it's
come up so much whether or notan employer has the ability to
(09:10):
collect, produce, look at datafrom an employee's personal
mobile device for purposes oflitigation, and there's a weird
range of case law decisions outthere, particularly in the last
few years, on this issue, and Ithink there's no guidance at all
for practitioners right now onwhat they should be doing, and
(09:31):
so we wanted to talk about that.
I'm going to start with you,and I know there are two tests
that historically have beenemployed to consider possession,
custody or control under Rule34, the legal right test and the
practical ability test.
What are those tests and howare they different?
Xavier Rodriguez (09:48):
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 sureeverybody's always on the same
page when we start building ontopics.
And so why does all this matter?
I guess, is where I want tostart.
So everybody I think by now wholistens to your podcast, knows
that you have a duty to preservedocuments when you know, or
(10:12):
reasonably should know, thatlitigation is imminently
foreseeable, and so we have thisduty to preserve.
But preserve what?
And so then, we've had, youknow, introductions about the
scope, and we've talked aboutsending demand letters to the
other side, if you're theplaintiff, or maybe you receive
the complaint or the petition,and so you know what the matters
(10:34):
are about.
So you have a duty to preservematters that are relevant to
whatever the scope of thelitigation is, that are not
privileged, and so you need tostart identifying that Don't
forget proportionality.
Yeah, I want to get toproportionality, and so you have
a duty to start figuring out.
You know what is this relevantdata and where is it located,
(10:58):
and so, as it pertains topossession, custody or control,
you only have a duty to preserveand then later produce
documents that are in yourpossession, custody or control.
Now, possession and custody arepretty easy, right, you have
the stuff.
If you have the data, thedocument, you have the phone in
(11:23):
your hands or in the corporateoffices or whatever, you're in
possession or custody of it.
So we're really fighting overthis word control, and what does
this word mean?
And, regrettably, leading to alot of confusion.
Federal rule of civil procedure34 does not define control, and
(11:43):
so this is where we've hadcourts all wrestling, coming up
with different standards as towhether or not it means the
practical ability to getsomething or a legal right, and
then, regrettably, now courtsare sort of mismatching both
sets and sort of creating thisnew hybrid animal, which really
helps and complicates things.
So it's important because weneed to figure out what do we
(12:07):
actually have to identify andpreserve and then later produce.
So if it was just easy, right.
Kelly Twigger (12:15):
If it was just easy, we wouldn't be talking.
Xavier Rodriguez (12:18):
Yeah.
So let's just focus on thesetwo 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 jurisdictionsthat have this practical ability
test, most notably in theSecond Circuit, the East Coast.
(12:38):
What does that mean?
Well, it means, like, let's say, we have an antitrust matter
and the general counsel, who'son the 20th floor, gets a copy
of the complaint and says oh,we've been sued for antitrust.
If he has the practical abilityjust to walk down the hallway to
the CEO's office and say hey,boss, here's a complaint that we
(13:01):
just got sued and in therethey've said that you have been
colluding with trying to fixprices.
We're going to need to naildown you know the potential
evidence to this case because wehave a duty to preserve it.
Can I have your cell phone?
In those practical abilitytests?
That's sort of what they'realluding to.
Alluding to, you have thepractical ability just to walk
(13:23):
down the hall, grab somebody'sphone.
Then you have to review it,identify it, preserve it and
then later potentially produceit.
Kelly Twigger (13:39):
Can I stop you there for a minute, because I'm
not sure that's how most folksview the practical ability test,
because why can't I?
I mean, what if I'm the CEO andI say, no, you can't have?
Xavier Rodriguez (13:45):
it, yeah, yeah .
So let me, you're absolutelyright.
Let me, let me identify the twobig tests, and then let's talk
about.
Kelly Twigger (13:53):
I'm sorry I got ahead of myself oh no, no, no,
not at all.
Xavier Rodriguez (13:56):
Let's talk about how it gets, because
you're, you're right on track.
That's the second test, thelegal right of control test.
In those jurisdictions they sayyou have to have the legal
right to be able to ask somebodyfor the phone and so you might
do business with a third partyvendor.
And in that contractualagreement you have with a third
(14:20):
party vendor, there's a clausein there that says hey, if we
get sued and we need data fromyou, you agree that you're going
to provide us relevant data.
So you have a legal right to beable 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 abilityhas been highly criticized.
(14:42):
Because, for what you justraised, what happens if the
employee says no, you know, thisphone's not coming off my dead,
cold hands.
It's real hard to get a phoneoff somebody's hands, right?
We're glued to those phones,right, you go into a panic when
you don't have your phone withyou.
Kelly Twigger (15:02):
The privacy considerations right.
Xavier Rodriguez (15:03):
What's the scope?
Kelly Twigger (15:04):
of what you're going to look at.
Xavier Rodriguez (15:05):
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 acouple hours, that alone, you
know but in truth, technologyhas changed a little bit of this
analysis and we can talk aboutthat.
Kelly Twigger (15:22):
But you know it, doesn't it?
No longer the phone no longerhas to come out of your
possession.
There's technology that allowsit to be captured right as
you're sitting here talking tome.
We could, you know we could.
Xavier Rodriguez (15:33):
we could have a Wi-Fi you know strong enough
and we could just send out thesignals and download remotely.
There's any number of ways thatare quicker, but that goes to
the privacy rights right.
As Carpenter and the UnitedStates Supreme Court said.
The cell phones now are therepository of a lot of
(15:53):
information, and so people havea little problem about that.
Why do you need my phone?
What are you going to get offmy phone?
Okay, well, you just need thetext messages.
Is there a way that you cansatisfy me that only the text
messages for this day at issueare going to be turned over, and
so you have some very difficultconversations.
(16:15):
So we got those issues on thepractical ability test.
Then on the legal right test,you know we may not have those
same issues, but the criticismfrom that test is that's giving
away from the responding partythe obligation to produce a lot
(16:38):
of data that may be actuallyvery relevant in the case.
So those are the two tensionsthat are going on in these cases
.
I don't follow.
What do you mean in terms oflegal right?
Yeah, so those are the twotensions that are going on in
these cases.
Kelly Twigger (16:45):
I don't follow.
What do you mean in terms oflegal right?
Xavier Rodriguez (16:49):
Yeah, so okay, legal right.
Let's say you have a employmentdiscrimination case.
As you well know, esi issuesare big in employment
discrimination cases.
If you don't have any kind ofBYOD policy that has any kind of
specificity, the manager who'saccused of sexual harassment,
(17:09):
who's accused of potentiallysending vulgar text or images,
you know, we the employer, andthat scenario, this legal right,
would not have to produce anycontent out of that manager's
phone.
Kelly Twigger (17:28):
Because there's nothing establishing that legal
right, whether it's a policy oran agreement or something like
that.
Xavier Rodriguez (17:34):
Absolutely so.
Those are the tensions that aregoing on.
This is putting a lot of on oneend.
This is putting a lot ofperhaps expense burden One end.
This is putting a lot ofperhaps expense burden
complexity to a companyproducing under the practical
ability.
The other tension, going infrom the very other end of the
spectrum, is this may allowpotentially very relevant
(17:56):
evidence to not be produced.
Now, I say not be produced.
What will happen in thosescenarios is if, under Rule 34,
we have a party, a party has anobligation to identify, preserve
and later's just say you don'thave the practical ability to
(18:16):
get it, you're going to have tosend, as the requester, a
subpoena under Rule 45 to athird party.
So you could ask yourself well,what's wrong with going that
direction?
(18:36):
Well, again, nothing's easy.
Number of problems One is okaynow we're putting on the
requesting party, generally aplaintiff, the additional cost
burdens to sending out subpoenasto third parties.
There's additional cost burdens.
Now we're putting the burden onsome third party now to either
(18:56):
object or comply with thesubpoena, and so they're a third
party.
They're going hey, why do Ihave 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'sgot a legal right or a practical
(19:17):
ability, and we find out thatneither test applies and a
subpoena must be issued, we'vegot to worry about data
spoilation.
That's right.
Kelly Twigger (19:28):
Neither test applies and a subpoena must be
issued.
We've got to worry about dataspoilation.
Xavier Rodriguez (19:31):
That's right, because time has gone, time has
flown, you know, all of a suddenhere, months have gotten by, if
not years, and then all of asudden data is no longer there.
And as to this third party,they're under no obligation to
keep any data until such time asthey've been subpoenaed.
So we got a problem here aboutthere may be a law.
Kelly Twigger (19:53):
You raise a huge point, which is that a third
party's duty to preserve doesn'tarise until they receive a
subpoena or have knowledge of asubpoena, right In the sort of
reasonable anticipation of Rule26.
And that's critical For me.
That's one of the reasons thatwe sit down and say let's talk
about the facts and allegationsof the case, because you know
(20:13):
right away who the people arewho have mobile device data, and
text messages are the thingthat 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 moreof that in civil.
I always find, in the massiveamount of time I spend in case
law, that what starts incriminal then comes over to
(20:33):
civil when it comes to thediscovery-related issues.
So, in terms of those tests,though, judge a number of the
cases that I've looked at on thecase of the week over the last
couple of years and I sent you afew of them for today they were
like the Enray-Pork decision,the Allergan decision, which we
just recently covered, and thenthe Miramontes decision, which
(20:55):
is sort of a bit of an outlier.
None of those three decisionsreally look at those tests.
They say the tests exist?
Well, miramontes doesn't.
But then they kind of go eitherthey're met or they don't say
why, or they don't really talkabout them at all.
They just make a decision aboutpossession, custody or control
without discussing the tests.
(21:15):
So where are we?
How do we have guidance aspractitioners to come to a court
like yours and say, judge, wedon't have possession, custody
or control, or we do yeah.
Xavier Rodriguez (21:29):
So, boy, how do I even respond to that?
So you're on point, because Iwas mentioning this mix mash of
you know, courts don't likethese to be pigeonholed into
these things.
You know, all of a sudden wesee a legal right perhaps you
know argument being advanced andwe see that there's going to be
(21:51):
slippage of irrelevant data.
See that there's going to beslippage of irrelevant data and
then maybe we're worried aboutalthough I've never seen anybody
articulate this, but maybewe're worried about in the back
of our mind, roll one speedy,just speedy and inexpensive, and
we're thinking why are we goingthrough all the hassles of
sending out subpoenas andbothering third parties here?
(22:11):
You all just produce it and so alot of think of that is going
to the back of the minds of alot of judges.
Let's just get there as opposedto 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 thelawyers I think everybody's
(22:33):
making a huge mistake in a lotof cases by not having good
talks.
I'm not talking sending anemail and sending a demand
letter and wrote language aboutpreserve this and preserve that.
You know that's going to getyou nowhere if we're going to
ultimately have a fight overthis possession, custody or
control and people need to startpicking up the phone and just
(22:56):
to, even before litigation isfiled, or certainly right when
the litigation is served, andhaving just a conversation.
Now in the federal court wehave this mandatory meet and
confer requirement.
A lot of state courts don't, butthat doesn't mean you can't and
you're probably it behooves youto do so and just start talking
(23:20):
about hey, I'm under theimpression that the phone text
messages from the followingindividuals are probably going
to be very relevant.
Are you going to produce thoseor are we going to have to send
subpoenas?
I mean, I would start askingthose kind of questions really
early on, which means,unfortunately, we have to be a
lot more prepared as lawyersthan what I see.
(23:42):
I do my own Rule 16 conferencesand I'm amazed at just the lack
of preparation that the partiesare ready to discuss the case
at that stage.
I mean, by that time thelawsuit's already been filed, An
answer has been filed, A monthor two has already slipped by
before I can schedule you tocome in the courtroom and, like
(24:04):
no one can answer questions,Right, and, as we mentioned
before, the data loss problem isis so prominent, right.
Kelly Twigger (24:12):
Even in that month, somebody goes and gets
their phone replaced.
You know, and I'm personallyalways amazed at the ability of
someone to go get their phonereplaced and somehow lose all of
the text messages that used tobe on the phone previously.
Xavier Rodriguez (24:24):
Hey well, they just announced the issuance of
a new series of phones.
Here I want the latest,greatest.
Kelly Twigger (24:30):
Right.
Well, yeah, but it's reallyeasy to keep your text messages
from phone to phone.
It's harder to not do that, Ithink.
But well, I think that'sinteresting because essentially
what we're talking about iscourts don't really like these
bright line rules.
It seems to me that thesebright line rules that we have
the practical ability, legalright, they don't really fit
(24:51):
with possession, custody orcontrol with mobile device data.
In the way that we work now,especially since COVID I mean,
since COVID, the use of personaldevices has exploded.
We work remotely, we're textingpeople 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 troublelogging in.
(25:11):
So there's so much informationthat's out there and available.
I can't say that I've had acase in the last 10 years that
didn't involve device.
Not 10 years, five years from amobile device, and you know
probably 50% of them before thelast five years.
But and so we're talking abouttext messages, we're talking
about instant messages like aWhatsApp, we're talking about
(25:34):
social media, which we probablywouldn't collect from a mobile
device, and so it's hard as alawyer to advise your clients on
these things.
Should you have a policy?
If you have a policy, then youcan rely on it to argue
possession, custody or control.
That's sort of the NRAP workcase and a little bit of the
(25:55):
Allergan case.
But if you don't have, if youhave that policy, you still have
the ability to not arguepossession, custody or control
if it's more cost-effective andmore protection for the witness,
who may still be your employee,to provide that information but
in a really cost-effective andmeaningful way.
Xavier Rodriguez (26:13):
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, wehave the right to, you know, ask
you for your mobile device foremails and so forth, and then a
lot of them will carve out thetext messages because at some
point then the human resourcespeople will get involved and say
(26:36):
this is going to be too much ofa morale issue, it's going to
be, you know, employee retentionissues, going to be too much of
a privacy issue, and so theysort of slice it off from the
other end of the spectrum andit's like, well, heck, you and I
know that that's where all thereally juicy data is right.
And so you're a judge sittingthere and, boy, this doesn't
(26:56):
sound right.
You know that all of a suddenyou can get the emails, but
you've carved out text andsometimes, in some cases, they
may not pass the smell test.
And so, yeah, you're asking mewhat to tell employers and I'm
saying, or companies thatprimarily has a primary
repositories of data.
(27:16):
And it's like you just do yourbest, I think you talk to folks
figure out who's got data, who'swilling to give it up.
Some people might not want togive it up.
You might want to say, hey,well, okay, I understand you
don't want to give it up, justwant to let you know.
You probably ought to beanticipating that the other
(27:36):
side's going to send you asubpoena.
Hey, so sorry, you're going tohave to get your own lawyer to
fight it if you want to fight it.
But you know, if you want to gothis route, we're willing to
help you out.
That may be the gentle push toget the reluctant aboard.
You can fight it in court andthen take your chances.
You know you would like tothink that there's some
(28:09):
certainty in the law, but thereis not.
I really want the advisoryrules committee to, if not,
change the rule.
Usual great program is doingsome papers this year that he'd
like to publish, and so he askedme hey, do you want to write
one?
And I got hey.
I'm thinking about possession,custody and control right now
I'm going to write a paper thereadvocating to the Advisory
Rules Committee that we need toprovide specificity here.
Kelly Twigger (28:33):
Yeah, there needs to be a bit more guidance, and
I think we're finding that in anumber of areas with the federal
rules, that what we had back in2006 and some changes made in
2015 aren't keeping up withtechnology 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 howthings should work.
(28:55):
And you know, there's always thesituation where you've got one
party who's got more resourcesthan the other party and they
can make all kinds of argumentsthat the other party can't
really afford to counteract andtherefore oftentimes ends up
without data that they shouldhave.
There's other times.
One of the cases that we'vecovered on Case of the Week
(29:16):
recently was the City of Atlantaversus Mazier, and I guess
that's the other way aroundMazier versus City of Atlanta
and in that situation there wasa supervisor who had text
messages that were relevant to adiscrimination case and the
city didn't preserve them.
They just didn't keep them, andso there was a spoliation issue
(29:37):
, but the issue of possession,custody or control of those text
messages never even came up inthe case, and so it's a what's
weird for me as I read the caselaws there's no consistency in
arguments that are made, there'sno consistency in how
possession, custody or controlis applied, and I 100% agree
(29:58):
with you that the right way tohandle it is to have that early
discovery strategy conference atthe outset, where you're both
putting your cards on the tableand really understanding what's
out there.
And I think one of theroadblocks to that is lack of
knowledge by counsel as to howto handle these issues.
Xavier Rodriguez (30:18):
Yeah, so you know that Mazier case is kind of
interesting.
Apparently, in that case, whatgot the employee fired happened
on April 29 of 2020, 2021.
And so we're interested infinding out.
Did she engage in someinappropriate misconduct on that
day At a?
Kelly Twigger (30:38):
meeting.
Xavier Rodriguez (30:39):
Yeah, at a meeting and whether or not they
were texting each other.
The other employees weretexting each other, but the
letter asking for a legal holdto be implemented, the
plaintiff's lawyer sent thatmonths ahead of time, november
the year before, yeah, and soit's like this was a funny
(31:00):
posture for this case.
Now you would figure that theemployer I'm not going to pick
on the city of Atlanta here, butjust an employer if you'd
already gotten that kind of aletter, you would already be
sort of a little on heightenededge about keeping stuff.
And so when the supervisorleaves with the work-issued
(31:20):
phone, the company-issued phonegets wiped and so off goes the
April 29 data.
But you know, no one ever talksabout possession custody
control.
So obviously that was in thepossession because it's city
owned property and so I thinkthat's why PCC didn't come up in
that case.
But there's just like vagueallusions to a private phone and
(31:41):
I'm all like, well, what's withthe private?
Kelly Twigger (31:43):
phone.
It was really that.
That's another thing.
That's hard right is we'retrying to use case law to make
arguments, and yet the case lawis not really clear on the facts
and so, therefore, the decisionthat the judge makes.
Oftentimes when I'm doing caseof the week, I'm going well,
there's nothing about this inthe decision.
I'm going to guess A, B and C,but you have to go back to the
(32:03):
briefs and know all the stuffthat was in front of the judge.
It's hard because these arediscovery decisions, are all
incredibly fact-based, and whenthe facts that you think ought
to be part of the analysis arenot included in the decision,
it's hard to reconcile it.
Xavier Rodriguez (32:18):
On the writing end of this I can tell you you
know at least.
What I wrestle with when I'mwriting orders is like, well,
you want to make it at least,you want to make it complete,
but you don't want toover-inundate it with such that
it's just boring, that's right.
Right.
You get these 150-page ine-discovery and it's like, oh,
my God, it's like you know, putme to sleep.
(32:38):
It's just like, oh, there's onething to be complete, and then
there's overkill.
And so, as the writer, you'realways wrestling with what do I
throw in and what can I keep out?
Kelly Twigger (32:49):
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 justa little bit, but stay on the
issue of possession, custody orcontrol.
The case that I just coveredthis week was a Vaughn versus
the Solera Holdings case, andthe reason that this one's
interesting is because there wasan issue of production of Slack
(33:10):
messages in that case.
Now, slack's not necessarily amobile application.
I can access it on my mobilephone, but I wouldn't collect it
from there.
In that case, the defendantargued that the plan that they
had for Slack didn't allow forthem to export messages and, as
a result, the data was not intheir possession, custody or
(33:32):
control, and the courts, reallywithout any analysis at all,
said okay, I guess it's not inyour possession, custody or
control if you can't export it.
And the reason that thathappened.
You know we're talking aboutmobile, but that's also relevant
for things like Signal.
Signal doesn't allow you toexport data.
Trying to collect Signal dataright now is a real challenge
(33:55):
for anybody trying to do it, andso is that where we're going
that if you can't export datafrom an application, you don't
have possession, custody orcontrol over it, even though the
data is relevant andproportional under Rule 26.
Xavier Rodriguez (34:12):
Yeah, you help me remember.
There was a case a few monthsago and so the company had only
gotten the basic version ofwhatever platform and they
didn't pay for the morehigher-priced platform or higher
price platform that would haveallowed for retention or access
to deleted or archived stuff.
(34:35):
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 thatcame to my mind when I was
looking at that bond case.
It's like, okay, it seems thatyou've got a certain version of
this Slack platform, but doesn'tthat I mean I don't think that
(34:57):
absolves you of going back toSlack and saying, hey, I've got
this version, I can't seem toextract stuff.
Is there any way I can pay foran up up charge to the greater
version now and access my oldstorage data from you all?
I mean I, I think you're,you're in possession or cut or
(35:19):
custody of that data.
It's it was your platform thatyou license to be able to work.
So if there's any data fromthat provider and there's a
means to get that archive dataout, I think you're under
obligation to at least try to dothat.
You correct me if I'm wrong.
Kelly Twigger (35:39):
No, that would have been my sense too, but
that's not what the judge foundhere.
Xavier Rodriguez (35:43):
Yeah, well, you know, I don't know if he
found it, he just like, just asyou mentioned, sort of yeah yeah
, and so yeah, I wasn't surethat to me would be a failing of
the failing of the, the councilright.
Kelly Twigger (35:55):
I mean, I don't think it's reasonable for us to
come to you even you, who'sprobably as as informed about
e-discovery issues and sourcesof esi as as most judges in this
country that to come to you andexpect you to understand that
there are different levels ofslack plans and whether those
can be dealt with, and even whatthe cost would be.
Now I could see in this case,if I had a party on the other
(36:19):
side who made this argument tome.
My response would be look, goand understand what the cost is
to be able to export thisinformation, to upgrade the plan
for a month or whatever ittakes to be able to export this
information.
I know there are APIs fromSlack that allow you to do that
and partners that arespecifically listed on Slack's
(36:40):
website to allow you to do that,and then come back to me and
let's discuss what that cost is.
Xavier Rodriguez (36:46):
And then we can talk proportionality Right
and that's exactly right.
Kelly Twigger (36:49):
And then either we do a cost shifting Right, so
we'll agree to split the costwith you or whatever to get the
data.
But in this particular instance, the judge just said no
possession custody control, nodata.
Xavier Rodriguez (37:01):
Yeah.
And it was a district judge, soWell, I hate to disagree,
especially a district judge anda fellow Texan, but I'm not sure
about this one.
Kelly Twigger (37:10):
Yeah, yeah, yeah, sorry about that, fellow Texans
, but yeah, it's, it's, I don'tknow.
I think for me, the whole thingcomes down to the rules and the
interpretation of the rules arenot in pace with technology and
the way that it's impactingdata for purposes of discovery,
(37:37):
and we're we are so stillfocused on the volumes and
complexity of what we're dealingwith that we're not really
focusing on the real issues thatallow us to get to the
information that's relevant fora particular case, and that's a
little bit frustrating to me.
Xavier Rodriguez (37:47):
So you're getting me further off topic,
but something that you just saidtriggered this thought.
One thing that I think we'redoing as judges and law clerks
and chambers are doing a reallybad job about is we
instinctively go to the lawinstead of current technology,
and what I mean by that.
Some issue comes up, andbecause we as lawyers are all
(38:09):
trained to look up the cases,voila.
We initially just start rushingover to 10 year old cases and
say look, 10 years ago it saidthis, even though the current
state of technology makes allthat irrelevant and obsolete,
and so we are really not wellsuited to understanding.
(38:30):
I mean, you got to keep up withit.
It's hard.
I understand that Boy.
You know, I try to keep up, Iteach, and it's every day
something.
There's a new app, and.
But I think we've got to do alot better job of of of not
relying on old law andunderstanding the technology
that's right before us.
Kelly Twigger (38:49):
I think that point that you make is excellent
and it's in the Allergan casein particular.
The analysis that I did on thecase of the week was
specifically that the cases thathe looked at were from before
2020, when we had whole COVIDand the way work changed and
everything, and I think that's atremendous point.
I think for practitioners outthere to understand that you
(39:13):
need to be looking at the mostrecent case law, and the case
law that's coming out right nowis what you need to be looking
in terms of things.
But, that being said, right,the Miramontes decision, which
is completely you know, wetalked about this a little bit
in advance, prep for the callthe Miramonte's decision was the
one where I think it was JudgeBoyle, you know she essentially
(39:35):
said that the way that we worktoday is completely different,
and I'm just going to do part ofthis quote.
Today, many, if not most,employees use cell phones for
work.
While some companies issue workdevices, others, including
Periton, do not.
Under Periton's view, a companycould effectively shield a
significant amount of itsemployees' business
(39:56):
communications from discoverysimply by allowing its employees
to conduct business on theirpersonal phones and for this
reason, the court agrees withother courts that have found
electronically storedinformation on employees'
personal devices may be underthe control of their employer in
certain circumstances.
Xavier Rodriguez (40:12):
But no analysis of those two tests, no
no, because what that statementdoes is it sort of ignores both
tests.
Right, there's no legal right.
Just because there's businessuse doesn't mean there's legal
right and and so practicalability.
I mean that goes back down tothe tension.
(40:32):
Okay, well, you know, ifthey're using their personal
phones for company business,what happens when they say no.
You know what happens when theyquit, what happens when they
get fired and take their phonewith them.
That doesn't help us understandat all what the preservation
obligations are, but it does.
(40:52):
That's a very good snippet ofjust current reality that I mean
I see mobile use in just alltypes of cases now, like even
wage and hour cases.
Somebody will say, hey, no, I'man employee, not an independent
contractor.
The boss is directing allaspects of my control.
He texted me daily Are you here, are you there?
(41:16):
I want you here.
And so the text messages allbecome relevant yeah, it's just,
it's, it's all pervasive now.
Kelly Twigger (41:40):
And there's so many questions, right?
Is it a company issued phone oris it a personal phone?
Is there a policy from thecompany about bring your own
device, and does the policyspecify certain types of data
that the company can review atany data that you would view
from the personal mobile device,or is it data that you would
view on a company system likeemail?
Right, email is not normallycollected from mobile devices
because you only get a piece ofthe file that actually gets
loaded on the mobile device.
We collect that from the systemwhere it actually originates,
(42:02):
from the email system.
You're just viewing it on amobile device, but other data is
only physically available fromthe device, on a mobile device,
but other data is onlyphysically available from the
device Text messages, you knowWhatsApp, a number of different
applications that are onlyavailable from the device, and
so I don't know.
This is a huge issue and Ithink it only gets more
pervasive as we go along.
And when you write your paper, Ihope to heaven it makes the
(42:25):
Federal Rules Commission kind oflook at.
I think we really need to dosomething here, because Judge
Rodriguez says so.
Xavier Rodriguez (42:30):
I doubt that's going to happen, but you know,
I've been playing around withjust hey, maybe a whole brand
new test agency, right?
You know, in Title VII and in awhole bunch of other contexts,
we've always made managers, youknow, as an agent of the company
.
We made the company liable forthe managerial actions.
And, you know, maybe that's atleast a starting point for
(42:53):
employers or companies.
Just to think about, hey, ifwhoever has the mobile device,
even if it's personal, ifthey're acting as an agent of
you, well then in all likelihood, you know, maybe you ought to
start asking for that data fromthat person, preserving it and
later potentially producing it.
Kelly Twigger (43:15):
I like that conceptually.
Here's one thing I immediatelysee, and that is every all of
the federal circuits havedifferent laws regarding agency
and different laws regardingprivilege around agency.
Xavier Rodriguez (43:30):
There's no easy answers to any of this.
Kelly Twigger (43:32):
No, it's so complicated.
It's so complicated, but thishas 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 episodeof the Meet and Confer podcast.
I'm so ecstatic that you wereable to join us today, but I
wanted to implement a littlesomething that's kind of
(43:54):
different, called the SuggestionBox, and you have free reign to
provide whatever suggestionsyou want, whether it's food,
television, travel, anythingbecause I know that you have
such an incredible resume ofthings that you've done in your
life and places you've been andseen.
I'd love for you to share someof that.
So what are your suggestions tofolks for the suggestion box?
Xavier Rodriguez (44:13):
So it's so easy to get wrapped up in the
news of the day and the trialsof practice and everything else.
My suggestion is you knowthere's got to be some pathway
out.
You know whether it's taking ajog on the weekends and going
for a long walk or jog or travel.
(44:35):
But you know you, you've got toget away from the pressures of
both work and and everythingelse we're facing and then just
like, veg out.
I, when I do all these littlejogs that I do on the weekends
and work out.
I don't tune into musicgenerally but podcast right.
But as great as this podcast is, you know, if I need to veg out
(44:57):
and that's because I'm ahistory fanatic.
There's a great number of BBCpodcasts.
They're really witty.
One's called You're Dead to Me.
And they just take random deadhistorical figures and do just a
great little witty analysis ofit and it's just a great way to
(45:18):
tune out.
Kelly Twigger (45:19):
Oh, I love that one.
I'm going to check that one out.
That sort of reminds me of whenwe used to listen to Paul
Harvey's the Rest of the Story.
Xavier Rodriguez (45:26):
Yeah.
Kelly Twigger (45:26):
Yeah, yeah, that's fantastic.
Thanks so much, judge.
Judge, I really appreciate youbeing here today.
Thanks so much for joining us.
Look forward to the paper, sowe'll try to share that with the
audience as well.
If and when that comes out, andif I can help in any way, you
know where to reach me.
Xavier Rodriguez (45:39):
Thank you, good to see you and see you soon
.
Kelly Twigger (45:43):
Wow, what a fantastic conversation with
Judge Rodriguez to wrap ourfirst episode of the Newly
Branded Meet and Convert podcast.
I think, in a lot of ways, ourepisode asks more questions, or
poses more questions than itanswers for you on the concepts
of possession, custody orcontrol, and I'll kick this off
to you to really take theconversation that we had here
(46:06):
and go to your organizations, goto your clients and really
understand what is the positionthat you want to be able to your
organizations, go to yourclients and really understand
what is the position that youwant to be able to take when it
comes to mobile device data andwhat is the best way to
construct policies, procedures,process to be able to take that
position.
Now, obviously, that's going tochange based on the facts of
each case, but there areoverarching decisions that you
(46:26):
will want to make and, as ourdiscussion illuminates, there's
not a lot of guidance out thereon what the best approach is.
So not only do you need to takethat position in an educated
way, but you need to be able toinform your counsel so that your
positions are consistentlyapplied across all of your
discovery matters in litigation.
And that's a wrap.
(46:47):
Once again, thanks to oursponsor, modeone Technologies,
with whom we worked together tocreate the Mobile Minute segment
that kicked off with thisepisode.
If you're interested inlearning more about ModeOne
Technologies' remote mobiledevice collection tool, please
visit them at modeoneio.
Please visit them at mode1.io.
(47:14):
We'll be sure to include JudgeRodriguez's suggestion from the
You're Dead to Me podcast, aswell as all the decisions that
we discussed in the show notesbelow, and thanks for joining us
so much on this episode.
If you've got any feedback forus for the podcast or topics
that you'd like to see covered,please feel free to reach out to
me at podcasts at minerva26.comand we'll get those taken care
(47:35):
of.
Finally, if you've enjoyed thispodcast, we would love if you
could share it with yourcolleagues, friends, other folks
who may enjoy it, and alsosubscribe on your favorite
podcasting platform or leave usa review.
Thanks so much.
Hi and welcome to the Meet and Confer podcast.
I'm your host, kelly Twigger, apracticing attorney, technology
lover, software developer anddiscovery strategist of more
than 28 years.
Today is the first episode inour newest segment called Mobile
Minutes, which covers the gamutof issues dealing with data
from mobile devices.
This segment is brought to youin partnership with ModeOne
(00:23):
Technologies.
If you haven't seen Mode One'stechnology offering remote yet
targeted and incredibly fastcollections for mobile devices
and web-based services, you'llwant to check them out by
visiting modeone.
io Today.
I'm thrilled to welcome UnitedStates District Judge Xavier
Rodriguez to the podcast.
(00:45):
District Judge Xavier Rodriguezto the podcast.
I've had the distinct privilegeof knowing Judge Rodriguez for
many years, collaborating withhim on events like the
University of Florida eDiscoveryConference and sharing many
meals and insightfulconversations along the way.
I have so much respect forJudge Rodriguez mostly because
he's one of the best humansyou'll ever meet.
He's kind, thoughtful,incredibly articulate,
ridiculously intelligent andvery generous with his knowledge
(01:07):
and time, both with folks likeme and as a professor at St
Mary's Law School.
His distinguished career spansbeing an attorney and partner at
an AmLaw 100 law firm, servingas a justice on the Texas
Supreme Court and now serving asa United States District Judge
for the Western District ofTexas for the past 20 years.
Judge Rodriguez frequentlycontributes his expertise on
(01:29):
e-discovery, artificialintelligence, privacy and many
other issues in the law, andstands out as one of the most
forward-thinking judges in thecountry, consistently urging the
law to keep pace withtechnology.
In this episode, ourconversation challenges
conventional thinking and divesdeeply into a critical and
pervasive issue in modernlitigation Whether an employer
(01:52):
has possession, custody, controlover the data stored on an
employee's personal mobiledevice for production and
litigation.
It's an essential questionconfronting litigators daily.
Let's dive in.
I am thrilled to welcome UnitedStates District Judge Xavier
Rodriguez to the podcast today.
(02:14):
Judge, thank you so much forjoining me today.
Xavier Rodriguez (02:17):
Oh, Kelly, thanks for the invitation.
Kelly Twigger (02:19):
We had a few things that we wanted to talk
about, and as I was gettingready for today, it occurred to
me that you have some veryinteresting perspectives to
bring to the law.
You were a practicing lawyer atFulbright before you became a
state Supreme Court justice inTexas and then you joined the
federal bench as a United Statesdistrict judge.
(02:39):
Those are pretty differentperspectives and I'm curious
what your takeaways are fromthose various roles and how they
shed light on how you seematters that come before you in
district court.
Xavier Rodriguez (02:53):
Yeah, so you know you say it's very different
matters.
In some ways, you know this jobis a little combination of the
two.
So on a state Supreme Courtunlike the US Supreme Court
there's some differences, somesimilarities.
But on state Supreme Courts yougenerally take on cases like
the US Supreme Court, wherethere's a conflict in the law, a
(03:14):
conflict among the courts ofappeals.
But you know there's a lot ofdiscretion depending on which
state you're in.
By and large, texas, like moststate Supreme Courts, are not
error correction courts.
So if the trial court or theCourt of Appeals made just a
simple error, one party or theother may not like it, you know
they may want to try to take itto the higher court, but by and
(03:36):
large you're not going to getredress at the high court for
simple error correction.
There's always exceptions, youknow, and so as it relates to
e-discovery and procedure, youknow state Supreme Courts have a
lot of role through.
So rule changes come throughthe court and we normally
(03:57):
delegated it down to an advisoryrules committee, just like in
our federal system.
But you know by and large wehave a little more interest in
the state courts aboutprocedural rules in the high
court.
And so you know, if instancesoccurred, even if it was an
error, but if it was somethinglike burdensomeness on the
parties because of discoverypractices, you know the high
(04:21):
courts will generally try tohear those sometimes if they
think it's going to set a tonefor how they think discovery and
trial practice should occur.
But yeah, no, it was aninteresting time up there.
A lot of it was interesting.
Kelly Twigger (04:36):
Some of it you know just like all dogs, right,
yeah, when you say it'sdifferent in that the state
courts have more of an interestat the state court level, and
those are things that can'treally happen at the United
States Supreme Court level.
There's just too many complexissues that have to be heard
there.
Xavier Rodriguez (04:52):
You know what?
Kelly Twigger (04:53):
Which is interesting, because most of the
discovery case law, the issuesthat we see that are published,
are from the federal courts.
I mean, I'm sure we see more instate courts than we're able to
get our hands on because it'sso difficult to get to state law
.
But that's interesting.
And how has that changed,moving into the federal bench at
all?
Xavier Rodriguez (05:12):
Yeah.
So here now I'm Jack of alltrades, master of none, as a
district judge.
You got criminal cases, you gotcivil cases.
If I drew a pie chart for youof our civil workload, it's
almost an equal slice of pie forjust a variety of matters
Employment law, breach ofcontract, employment,
(05:34):
discrimination, intellectualproperty.
It's just, it's a slice anddice of everything.
So, and in addition to that,this is where we're somewhat of
like an appellate judge wereview appeals from the Social
Security Administration and wereview appeals from the
bankruptcy court, and then ifyou're unsatisfied with the
(05:54):
decision that a magistrate judgemight have made in a pretrial
or discovery matter, then thatgets reviewed by us as district
judges.
So in some ways, you know,we're a trial court.
In some ways we're an appellatecourt.
Kelly Twigger (06:11):
When you are reviewing so I'm thinking really
more in the context of thediscovery-related decisions.
What percentage of your casesget assigned to a magistrate
initially?
Xavier Rodriguez (06:21):
Yeah, so I do things a little different,
different and every districtcourt has a different practice.
Some courts around the districtcourts around the country put
magistrate judges right on thewheel so they could get an equal
chance of getting fullassignment to a case.
Now, to have a case heard bythe magistrate judge from
(06:42):
initiation to trial requiresconsent of the parties, and so
under those systems where theygo under the wheel, someone has
to affirmably object to themagistrate judge being referred.
For all matters, includingtrial, some parties may be
hesitant to object.
Kelly Twigger (07:00):
Oh yeah, it was always a big decision for our
trial teams as to whether or notwe were going to consent to the
magistrate judge.
Yeah, go ahead.
Xavier Rodriguez (07:09):
Yeah, and so how we do it around here, though
, is so you get randomlyassigned to a district judge for
your civil case, but then inthe cause number we have a slash
It'll have XR slash and theninitials of a magistrate judge.
It'll have XR slash and theninitials of a magistrate judge,
and so, up front, you know whothe magistrate judge will be
assigned to the matter if youwant to consent to referral, and
(07:32):
so I think some parties want tohave like little knowledge up
front.
Well, who might get this andthat might put them a little
more at ease?
I don't know why, but we hadgot great magistrate judges.
Kelly Twigger (07:45):
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 theadvantages to going to the
magistrate over the districtjudge?
Xavier Rodriguez (07:55):
Yeah, the biggest advantage is trial
certainty because at any timegiven Jack of all trades, master
of none, right I've got thecriminal docket.
So in certain districts wherethere's a lot of criminal work,
about 10 courts around thecountry do over 60% of the
nation's criminal workloadSouthern District of Texas, the
(08:17):
Western District of Texas, theSouthern District of California,
the District of Arizona and,I'm sorry I'm missing one I
can't recall.
So if you consent to themagistrate judge, they don't
have that kind of calendarconcerns like we do.
Because of the Speedy Trial ActWe've got to handle the
criminal matters first and ifyou have a civil case set for
(08:38):
the same time you couldpotentially get bumped.
So if you want to trial certainon a certain date, consenting
to the magistrate judges willhelp you get there.
Kelly Twigger (08:47):
Yeah, if you want to trial certain on a certain
date, consenting to themagistrate judges will help you
get there.
Yeah, the magistrate's yourbest option in that situation.
All right, let's turn a littlebit to our topic du jour, which
is thinking about possession,custody or control in the
context of data from a mobiledevice.
And, as you and I startedtalking about this, really it's
come up so much whether or notan employer has the ability to
(09:10):
collect, produce, look at datafrom an employee's personal
mobile device for purposes oflitigation, and there's a weird
range of case law decisions outthere, particularly in the last
few years, on this issue, and Ithink there's no guidance at all
for practitioners right now onwhat they should be doing, and
(09:31):
so we wanted to talk about that.
I'm going to start with you,and I know there are two tests
that historically have beenemployed to consider possession,
custody or control under Rule34, the legal right test and the
practical ability test.
What are those tests and howare they different?
Xavier Rodriguez (09:48):
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 sureeverybody's always on the same
page when we start building ontopics.
And so why does all this matter?
I guess, is where I want tostart.
So everybody I think by now wholistens to your podcast, knows
that you have a duty to preservedocuments when you know, or
(10:12):
reasonably should know, thatlitigation is imminently
foreseeable, and so we have thisduty to preserve.
But preserve what?
And so then, we've had, youknow, introductions about the
scope, and we've talked aboutsending demand letters to the
other side, if you're theplaintiff, or maybe you receive
the complaint or the petition,and so you know what the matters
(10:34):
are about.
So you have a duty to preservematters that are relevant to
whatever the scope of thelitigation is, that are not
privileged, and so you need tostart identifying that Don't
forget proportionality.
Yeah, I want to get toproportionality, and so you have
a duty to start figuring out.
You know what is this relevantdata and where is it located,
(10:58):
and so, as it pertains topossession, custody or control,
you only have a duty to preserveand then later produce
documents that are in yourpossession, custody or control.
Now, possession and custody arepretty easy, right, you have
the stuff.
If you have the data, thedocument, you have the phone in
(11:23):
your hands or in the corporateoffices or whatever, you're in
possession or custody of it.
So we're really fighting overthis word control, and what does
this word mean?
And, regrettably, leading to alot of confusion.
Federal rule of civil procedure34 does not define control, and
(11:43):
so this is where we've hadcourts all wrestling, coming up
with different standards as towhether or not it means the
practical ability to getsomething or a legal right, and
then, regrettably, now courtsare sort of mismatching both
sets and sort of creating thisnew hybrid animal, which really
helps and complicates things.
So it's important because weneed to figure out what do we
(12:07):
actually have to identify andpreserve and then later produce.
So if it was just easy, right.
Kelly Twigger (12:15):
If it was just easy, we wouldn't be talking.
Xavier Rodriguez (12:18):
Yeah.
So let's just focus on thesetwo 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 jurisdictionsthat have this practical ability
test, most notably in theSecond Circuit, the East Coast.
(12:38):
What does that mean?
Well, it means, like, let's say, we have an antitrust matter
and the general counsel, who'son the 20th floor, gets a copy
of the complaint and says oh,we've been sued for antitrust.
If he has the practical abilityjust to walk down the hallway to
the CEO's office and say hey,boss, here's a complaint that we
(13:01):
just got sued and in therethey've said that you have been
colluding with trying to fixprices.
We're going to need to naildown you know the potential
evidence to this case because wehave a duty to preserve it.
Can I have your cell phone?
In those practical abilitytests?
That's sort of what they'realluding to.
Alluding to, you have thepractical ability just to walk
(13:23):
down the hall, grab somebody'sphone.
Then you have to review it,identify it, preserve it and
then later potentially produceit.
Kelly Twigger (13:39):
Can I stop you there for a minute, because I'm
not sure that's how most folksview the practical ability test,
because why can't I?
I mean, what if I'm the CEO andI say, no, you can't have?
Xavier Rodriguez (13:45):
it, yeah, yeah .
So let me, you're absolutelyright.
Let me, let me identify the twobig tests, and then let's talk
about.
Kelly Twigger (13:53):
I'm sorry I got ahead of myself oh no, no, no,
not at all.
Xavier Rodriguez (13:56):
Let's talk about how it gets, because
you're, you're right on track.
That's the second test, thelegal right of control test.
In those jurisdictions they sayyou have to have the legal
right to be able to ask somebodyfor the phone and so you might
do business with a third partyvendor.
And in that contractualagreement you have with a third
(14:20):
party vendor, there's a clausein there that says hey, if we
get sued and we need data fromyou, you agree that you're going
to provide us relevant data.
So you have a legal right to beable 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 abilityhas been highly criticized.
(14:42):
Because, for what you justraised, what happens if the
employee says no, you know, thisphone's not coming off my dead,
cold hands.
It's real hard to get a phoneoff somebody's hands, right?
We're glued to those phones,right, you go into a panic when
you don't have your phone withyou.
Kelly Twigger (15:02):
The privacy considerations right.
Xavier Rodriguez (15:03):
What's the scope?
Kelly Twigger (15:04):
of what you're going to look at.
Xavier Rodriguez (15:05):
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 acouple hours, that alone, you
know but in truth, technologyhas changed a little bit of this
analysis and we can talk aboutthat.
Kelly Twigger (15:22):
But you know it, doesn't it?
No longer the phone no longerhas to come out of your
possession.
There's technology that allowsit to be captured right as
you're sitting here talking tome.
We could, you know we could.
Xavier Rodriguez (15:33):
we could have a Wi-Fi you know strong enough
and we could just send out thesignals and download remotely.
There's any number of ways thatare quicker, but that goes to
the privacy rights right.
As Carpenter and the UnitedStates Supreme Court said.
The cell phones now are therepository of a lot of
(15:53):
information, and so people havea little problem about that.
Why do you need my phone?
What are you going to get offmy phone?
Okay, well, you just need thetext messages.
Is there a way that you cansatisfy me that only the text
messages for this day at issueare going to be turned over, and
so you have some very difficultconversations.
(16:15):
So we got those issues on thepractical ability test.
Then on the legal right test,you know we may not have those
same issues, but the criticismfrom that test is that's giving
away from the responding partythe obligation to produce a lot
(16:38):
of data that may be actuallyvery relevant in the case.
So those are the two tensionsthat are going on in these cases
.
I don't follow.
What do you mean in terms oflegal right?
Yeah, so those are the twotensions that are going on in
these cases.
Kelly Twigger (16:45):
I don't follow.
What do you mean in terms oflegal right?
Xavier Rodriguez (16:49):
Yeah, so okay, legal right.
Let's say you have a employmentdiscrimination case.
As you well know, esi issuesare big in employment
discrimination cases.
If you don't have any kind ofBYOD policy that has any kind of
specificity, the manager who'saccused of sexual harassment,
(17:09):
who's accused of potentiallysending vulgar text or images,
you know, we the employer, andthat scenario, this legal right,
would not have to produce anycontent out of that manager's
phone.
Kelly Twigger (17:28):
Because there's nothing establishing that legal
right, whether it's a policy oran agreement or something like
that.
Xavier Rodriguez (17:34):
Absolutely so.
Those are the tensions that aregoing on.
This is putting a lot of on oneend.
This is putting a lot ofperhaps expense burden One end.
This is putting a lot ofperhaps expense burden
complexity to a companyproducing under the practical
ability.
The other tension, going infrom the very other end of the
spectrum, is this may allowpotentially very relevant
(17:56):
evidence to not be produced.
Now, I say not be produced.
What will happen in thosescenarios is if, under Rule 34,
we have a party, a party has anobligation to identify, preserve
and later's just say you don'thave the practical ability to
(18:16):
get it, you're going to have tosend, as the requester, a
subpoena under Rule 45 to athird party.
So you could ask yourself well,what's wrong with going that
direction?
(18:36):
Well, again, nothing's easy.
Number of problems One is okaynow we're putting on the
requesting party, generally aplaintiff, the additional cost
burdens to sending out subpoenasto third parties.
There's additional cost burdens.
Now we're putting the burden onsome third party now to either
(18:56):
object or comply with thesubpoena, and so they're a third
party.
They're going hey, why do Ihave 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'sgot a legal right or a practical
(19:17):
ability, and we find out thatneither test applies and a
subpoena must be issued, we'vegot to worry about data
spoilation.
That's right.
Kelly Twigger (19:28):
Neither test applies and a subpoena must be
issued.
We've got to worry about dataspoilation.
Xavier Rodriguez (19:31):
That's right, because time has gone, time has
flown, you know, all of a suddenhere, months have gotten by, if
not years, and then all of asudden data is no longer there.
And as to this third party,they're under no obligation to
keep any data until such time asthey've been subpoenaed.
So we got a problem here aboutthere may be a law.
Kelly Twigger (19:53):
You raise a huge point, which is that a third
party's duty to preserve doesn'tarise until they receive a
subpoena or have knowledge of asubpoena, right In the sort of
reasonable anticipation of Rule26.
And that's critical For me.
That's one of the reasons thatwe sit down and say let's talk
about the facts and allegationsof the case, because you know
(20:13):
right away who the people arewho have mobile device data, and
text messages are the thingthat 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 moreof that in civil.
I always find, in the massiveamount of time I spend in case
law, that what starts incriminal then comes over to
(20:33):
civil when it comes to thediscovery-related issues.
So, in terms of those tests,though, judge a number of the
cases that I've looked at on thecase of the week over the last
couple of years and I sent you afew of them for today they were
like the Enray-Pork decision,the Allergan decision, which we
just recently covered, and thenthe Miramontes decision, which
(20:55):
is sort of a bit of an outlier.
None of those three decisionsreally look at those tests.
They say the tests exist?
Well, miramontes doesn't.
But then they kind of go eitherthey're met or they don't say
why, or they don't really talkabout them at all.
They just make a decision aboutpossession, custody or control
without discussing the tests.
(21:15):
So where are we?
How do we have guidance aspractitioners to come to a court
like yours and say, judge, wedon't have possession, custody
or control, or we do yeah.
Xavier Rodriguez (21:29):
So, boy, how do I even respond to that?
So you're on point, because Iwas mentioning this mix mash of
you know, courts don't likethese to be pigeonholed into
these things.
You know, all of a sudden wesee a legal right perhaps you
know argument being advanced andwe see that there's going to be
(21:51):
slippage of irrelevant data.
See that there's going to beslippage of irrelevant data and
then maybe we're worried aboutalthough I've never seen anybody
articulate this, but maybewe're worried about in the back
of our mind, roll one speedy,just speedy and inexpensive, and
we're thinking why are we goingthrough all the hassles of
sending out subpoenas andbothering third parties here?
(22:11):
You all just produce it and so alot of think of that is going
to the back of the minds of alot of judges.
Let's just get there as opposedto 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 thelawyers I think everybody's
(22:33):
making a huge mistake in a lotof cases by not having good
talks.
I'm not talking sending anemail and sending a demand
letter and wrote language aboutpreserve this and preserve that.
You know that's going to getyou nowhere if we're going to
ultimately have a fight overthis possession, custody or
control and people need to startpicking up the phone and just
(22:56):
to, even before litigation isfiled, or certainly right when
the litigation is served, andhaving just a conversation.
Now in the federal court wehave this mandatory meet and
confer requirement.
A lot of state courts don't, butthat doesn't mean you can't and
you're probably it behooves youto do so and just start talking
(23:20):
about hey, I'm under theimpression that the phone text
messages from the followingindividuals are probably going
to be very relevant.
Are you going to produce thoseor are we going to have to send
subpoenas?
I mean, I would start askingthose kind of questions really
early on, which means,unfortunately, we have to be a
lot more prepared as lawyersthan what I see.
(23:42):
I do my own Rule 16 conferencesand I'm amazed at just the lack
of preparation that the partiesare ready to discuss the case
at that stage.
I mean, by that time thelawsuit's already been filed, An
answer has been filed, A monthor two has already slipped by
before I can schedule you tocome in the courtroom and, like
(24:04):
no one can answer questions,Right, and, as we mentioned
before, the data loss problem isis so prominent, right.
Kelly Twigger (24:12):
Even in that month, somebody goes and gets
their phone replaced.
You know, and I'm personallyalways amazed at the ability of
someone to go get their phonereplaced and somehow lose all of
the text messages that used tobe on the phone previously.
Xavier Rodriguez (24:24):
Hey well, they just announced the issuance of
a new series of phones.
Here I want the latest,greatest.
Kelly Twigger (24:30):
Right.
Well, yeah, but it's reallyeasy to keep your text messages
from phone to phone.
It's harder to not do that, Ithink.
But well, I think that'sinteresting because essentially
what we're talking about iscourts don't really like these
bright line rules.
It seems to me that thesebright line rules that we have
the practical ability, legalright, they don't really fit
(24:51):
with possession, custody orcontrol with mobile device data.
In the way that we work now,especially since COVID I mean,
since COVID, the use of personaldevices has exploded.
We work remotely, we're textingpeople 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 troublelogging in.
(25:11):
So there's so much informationthat's out there and available.
I can't say that I've had acase in the last 10 years that
didn't involve device.
Not 10 years, five years from amobile device, and you know
probably 50% of them before thelast five years.
But and so we're talking abouttext messages, we're talking
about instant messages like aWhatsApp, we're talking about
(25:34):
social media, which we probablywouldn't collect from a mobile
device, and so it's hard as alawyer to advise your clients on
these things.
Should you have a policy?
If you have a policy, then youcan rely on it to argue
possession, custody or control.
That's sort of the NRAP workcase and a little bit of the
(25:55):
Allergan case.
But if you don't have, if youhave that policy, you still have
the ability to not arguepossession, custody or control
if it's more cost-effective andmore protection for the witness,
who may still be your employee,to provide that information but
in a really cost-effective andmeaningful way.
Xavier Rodriguez (26:13):
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, wehave the right to, you know, ask
you for your mobile device foremails and so forth, and then a
lot of them will carve out thetext messages because at some
point then the human resourcespeople will get involved and say
(26:36):
this is going to be too much ofa morale issue, it's going to
be, you know, employee retentionissues, going to be too much of
a privacy issue, and so theysort of slice it off from the
other end of the spectrum andit's like, well, heck, you and I
know that that's where all thereally juicy data is right.
And so you're a judge sittingthere and, boy, this doesn't
(26:56):
sound right.
You know that all of a suddenyou can get the emails, but
you've carved out text andsometimes, in some cases, they
may not pass the smell test.
And so, yeah, you're asking mewhat to tell employers and I'm
saying, or companies thatprimarily has a primary
repositories of data.
(27:16):
And it's like you just do yourbest, I think you talk to folks
figure out who's got data, who'swilling to give it up.
Some people might not want togive it up.
You might want to say, hey,well, okay, I understand you
don't want to give it up, justwant to let you know.
You probably ought to beanticipating that the other
(27:36):
side's going to send you asubpoena.
Hey, so sorry, you're going tohave to get your own lawyer to
fight it if you want to fight it.
But you know, if you want to gothis route, we're willing to
help you out.
That may be the gentle push toget the reluctant aboard.
You can fight it in court andthen take your chances.
You know you would like tothink that there's some
(28:09):
certainty in the law, but thereis not.
I really want the advisoryrules committee to, if not,
change the rule.
Usual great program is doingsome papers this year that he'd
like to publish, and so he askedme hey, do you want to write
one?
And I got hey.
I'm thinking about possession,custody and control right now
I'm going to write a paper thereadvocating to the Advisory
Rules Committee that we need toprovide specificity here.
Kelly Twigger (28:33):
Yeah, there needs to be a bit more guidance, and
I think we're finding that in anumber of areas with the federal
rules, that what we had back in2006 and some changes made in
2015 aren't keeping up withtechnology 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 howthings should work.
(28:55):
And you know, there's always thesituation where you've got one
party who's got more resourcesthan the other party and they
can make all kinds of argumentsthat the other party can't
really afford to counteract andtherefore oftentimes ends up
without data that they shouldhave.
There's other times.
One of the cases that we'vecovered on Case of the Week
(29:16):
recently was the City of Atlantaversus Mazier, and I guess
that's the other way aroundMazier versus City of Atlanta
and in that situation there wasa supervisor who had text
messages that were relevant to adiscrimination case and the
city didn't preserve them.
They just didn't keep them, andso there was a spoliation issue
(29:37):
, but the issue of possession,custody or control of those text
messages never even came up inthe case, and so it's a what's
weird for me as I read the caselaws there's no consistency in
arguments that are made, there'sno consistency in how
possession, custody or controlis applied, and I 100% agree
(29:58):
with you that the right way tohandle it is to have that early
discovery strategy conference atthe outset, where you're both
putting your cards on the tableand really understanding what's
out there.
And I think one of theroadblocks to that is lack of
knowledge by counsel as to howto handle these issues.
Xavier Rodriguez (30:18):
Yeah, so you know that Mazier case is kind of
interesting.
Apparently, in that case, whatgot the employee fired happened
on April 29 of 2020, 2021.
And so we're interested infinding out.
Did she engage in someinappropriate misconduct on that
day At a?
Kelly Twigger (30:38):
meeting.
Xavier Rodriguez (30:39):
Yeah, at a meeting and whether or not they
were texting each other.
The other employees weretexting each other, but the
letter asking for a legal holdto be implemented, the
plaintiff's lawyer sent thatmonths ahead of time, november
the year before, yeah, and soit's like this was a funny
(31:00):
posture for this case.
Now you would figure that theemployer I'm not going to pick
on the city of Atlanta here, butjust an employer if you'd
already gotten that kind of aletter, you would already be
sort of a little on heightenededge about keeping stuff.
And so when the supervisorleaves with the work-issued
(31:20):
phone, the company-issued phonegets wiped and so off goes the
April 29 data.
But you know, no one ever talksabout possession custody
control.
So obviously that was in thepossession because it's city
owned property and so I thinkthat's why PCC didn't come up in
that case.
But there's just like vagueallusions to a private phone and
(31:41):
I'm all like, well, what's withthe private?
Kelly Twigger (31:43):
phone.
It was really that.
That's another thing.
That's hard right is we'retrying to use case law to make
arguments, and yet the case lawis not really clear on the facts
and so, therefore, the decisionthat the judge makes.
Oftentimes when I'm doing caseof the week, I'm going well,
there's nothing about this inthe decision.
I'm going to guess A, B and C,but you have to go back to the
(32:03):
briefs and know all the stuffthat was in front of the judge.
It's hard because these arediscovery decisions, are all
incredibly fact-based, and whenthe facts that you think ought
to be part of the analysis arenot included in the decision,
it's hard to reconcile it.
Xavier Rodriguez (32:18):
On the writing end of this I can tell you you
know at least.
What I wrestle with when I'mwriting orders is like, well,
you want to make it at least,you want to make it complete,
but you don't want toover-inundate it with such that
it's just boring, that's right.
Right.
You get these 150-page ine-discovery and it's like, oh,
my God, it's like you know, putme to sleep.
(32:38):
It's just like, oh, there's onething to be complete, and then
there's overkill.
And so, as the writer, you'realways wrestling with what do I
throw in and what can I keep out?
Kelly Twigger (32:49):
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 justa little bit, but stay on the
issue of possession, custody orcontrol.
The case that I just coveredthis week was a Vaughn versus
the Solera Holdings case, andthe reason that this one's
interesting is because there wasan issue of production of Slack
(33:10):
messages in that case.
Now, slack's not necessarily amobile application.
I can access it on my mobilephone, but I wouldn't collect it
from there.
In that case, the defendantargued that the plan that they
had for Slack didn't allow forthem to export messages and, as
a result, the data was not intheir possession, custody or
(33:32):
control, and the courts, reallywithout any analysis at all,
said okay, I guess it's not inyour possession, custody or
control if you can't export it.
And the reason that thathappened.
You know we're talking aboutmobile, but that's also relevant
for things like Signal.
Signal doesn't allow you toexport data.
Trying to collect Signal dataright now is a real challenge
(33:55):
for anybody trying to do it, andso is that where we're going
that if you can't export datafrom an application, you don't
have possession, custody orcontrol over it, even though the
data is relevant andproportional under Rule 26.
Xavier Rodriguez (34:12):
Yeah, you help me remember.
There was a case a few monthsago and so the company had only
gotten the basic version ofwhatever platform and they
didn't pay for the morehigher-priced platform or higher
price platform that would haveallowed for retention or access
to deleted or archived stuff.
(34:35):
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 thatcame to my mind when I was
looking at that bond case.
It's like, okay, it seems thatyou've got a certain version of
this Slack platform, but doesn'tthat I mean I don't think that
(34:57):
absolves you of going back toSlack and saying, hey, I've got
this version, I can't seem toextract stuff.
Is there any way I can pay foran up up charge to the greater
version now and access my oldstorage data from you all?
I mean I, I think you're,you're in possession or cut or
(35:19):
custody of that data.
It's it was your platform thatyou license to be able to work.
So if there's any data fromthat provider and there's a
means to get that archive dataout, I think you're under
obligation to at least try to dothat.
You correct me if I'm wrong.
Kelly Twigger (35:39):
No, that would have been my sense too, but
that's not what the judge foundhere.
Xavier Rodriguez (35:43):
Yeah, well, you know, I don't know if he
found it, he just like, just asyou mentioned, sort of yeah yeah
, and so yeah, I wasn't surethat to me would be a failing of
the failing of the, the councilright.
Kelly Twigger (35:55):
I mean, I don't think it's reasonable for us to
come to you even you, who'sprobably as as informed about
e-discovery issues and sourcesof esi as as most judges in this
country that to come to you andexpect you to understand that
there are different levels ofslack plans and whether those
can be dealt with, and even whatthe cost would be.
Now I could see in this case,if I had a party on the other
(36:19):
side who made this argument tome.
My response would be look, goand understand what the cost is
to be able to export thisinformation, to upgrade the plan
for a month or whatever ittakes to be able to export this
information.
I know there are APIs fromSlack that allow you to do that
and partners that arespecifically listed on Slack's
(36:40):
website to allow you to do that,and then come back to me and
let's discuss what that cost is.
Xavier Rodriguez (36:46):
And then we can talk proportionality Right
and that's exactly right.
Kelly Twigger (36:49):
And then either we do a cost shifting Right, so
we'll agree to split the costwith you or whatever to get the
data.
But in this particular instance, the judge just said no
possession custody control, nodata.
Xavier Rodriguez (37:01):
Yeah.
And it was a district judge, soWell, I hate to disagree,
especially a district judge anda fellow Texan, but I'm not sure
about this one.
Kelly Twigger (37:10):
Yeah, yeah, yeah, sorry about that, fellow Texans
, but yeah, it's, it's, I don'tknow.
I think for me, the whole thingcomes down to the rules and the
interpretation of the rules arenot in pace with technology and
the way that it's impactingdata for purposes of discovery,
(37:37):
and we're we are so stillfocused on the volumes and
complexity of what we're dealingwith that we're not really
focusing on the real issues thatallow us to get to the
information that's relevant fora particular case, and that's a
little bit frustrating to me.
Xavier Rodriguez (37:47):
So you're getting me further off topic,
but something that you just saidtriggered this thought.
One thing that I think we'redoing as judges and law clerks
and chambers are doing a reallybad job about is we
instinctively go to the lawinstead of current technology,
and what I mean by that.
Some issue comes up, andbecause we as lawyers are all
(38:09):
trained to look up the cases,voila.
We initially just start rushingover to 10 year old cases and
say look, 10 years ago it saidthis, even though the current
state of technology makes allthat irrelevant and obsolete,
and so we are really not wellsuited to understanding.
(38:30):
I mean, you got to keep up withit.
It's hard.
I understand that Boy.
You know, I try to keep up, Iteach, and it's every day
something.
There's a new app, and.
But I think we've got to do alot better job of of of not
relying on old law andunderstanding the technology
that's right before us.
Kelly Twigger (38:49):
I think that point that you make is excellent
and it's in the Allergan casein particular.
The analysis that I did on thecase of the week was
specifically that the cases thathe looked at were from before
2020, when we had whole COVIDand the way work changed and
everything, and I think that's atremendous point.
I think for practitioners outthere to understand that you
(39:13):
need to be looking at the mostrecent case law, and the case
law that's coming out right nowis what you need to be looking
in terms of things.
But, that being said, right,the Miramontes decision, which
is completely you know, wetalked about this a little bit
in advance, prep for the callthe Miramonte's decision was the
one where I think it was JudgeBoyle, you know she essentially
(39:35):
said that the way that we worktoday is completely different,
and I'm just going to do part ofthis quote.
Today, many, if not most,employees use cell phones for
work.
While some companies issue workdevices, others, including
Periton, do not.
Under Periton's view, a companycould effectively shield a
significant amount of itsemployees' business
(39:56):
communications from discoverysimply by allowing its employees
to conduct business on theirpersonal phones and for this
reason, the court agrees withother courts that have found
electronically storedinformation on employees'
personal devices may be underthe control of their employer in
certain circumstances.
Xavier Rodriguez (40:12):
But no analysis of those two tests, no
no, because what that statementdoes is it sort of ignores both
tests.
Right, there's no legal right.
Just because there's businessuse doesn't mean there's legal
right and and so practicalability.
I mean that goes back down tothe tension.
(40:32):
Okay, well, you know, ifthey're using their personal
phones for company business,what happens when they say no.
You know what happens when theyquit, what happens when they
get fired and take their phonewith them.
That doesn't help us understandat all what the preservation
obligations are, but it does.
(40:52):
That's a very good snippet ofjust current reality that I mean
I see mobile use in just alltypes of cases now, like even
wage and hour cases.
Somebody will say, hey, no, I'man employee, not an independent
contractor.
The boss is directing allaspects of my control.
He texted me daily Are you here, are you there?
(41:16):
I want you here.
And so the text messages allbecome relevant yeah, it's just,
it's, it's all pervasive now.
Kelly Twigger (41:40):
And there's so many questions, right?
Is it a company issued phone oris it a personal phone?
Is there a policy from thecompany about bring your own
device, and does the policyspecify certain types of data
that the company can review atany data that you would view
from the personal mobile device,or is it data that you would
view on a company system likeemail?
Right, email is not normallycollected from mobile devices
because you only get a piece ofthe file that actually gets
loaded on the mobile device.
We collect that from the systemwhere it actually originates,
(42:02):
from the email system.
You're just viewing it on amobile device, but other data is
only physically available fromthe device, on a mobile device,
but other data is onlyphysically available from the
device Text messages, you knowWhatsApp, a number of different
applications that are onlyavailable from the device, and
so I don't know.
This is a huge issue and Ithink it only gets more
pervasive as we go along.
And when you write your paper, Ihope to heaven it makes the
(42:25):
Federal Rules Commission kind oflook at.
I think we really need to dosomething here, because Judge
Rodriguez says so.
Xavier Rodriguez (42:30):
I doubt that's going to happen, but you know,
I've been playing around withjust hey, maybe a whole brand
new test agency, right?
You know, in Title VII and in awhole bunch of other contexts,
we've always made managers, youknow, as an agent of the company
.
We made the company liable forthe managerial actions.
And, you know, maybe that's atleast a starting point for
(42:53):
employers or companies.
Just to think about, hey, ifwhoever has the mobile device,
even if it's personal, ifthey're acting as an agent of
you, well then in all likelihood, you know, maybe you ought to
start asking for that data fromthat person, preserving it and
later potentially producing it.
Kelly Twigger (43:15):
I like that conceptually.
Here's one thing I immediatelysee, and that is every all of
the federal circuits havedifferent laws regarding agency
and different laws regardingprivilege around agency.
Xavier Rodriguez (43:30):
There's no easy answers to any of this.
Kelly Twigger (43:32):
No, it's so complicated.
It's so complicated, but thishas 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 episodeof the Meet and Confer podcast.
I'm so ecstatic that you wereable to join us today, but I
wanted to implement a littlesomething that's kind of
(43:54):
different, called the SuggestionBox, and you have free reign to
provide whatever suggestionsyou want, whether it's food,
television, travel, anythingbecause I know that you have
such an incredible resume ofthings that you've done in your
life and places you've been andseen.
I'd love for you to share someof that.
So what are your suggestions tofolks for the suggestion box?
Xavier Rodriguez (44:13):
So it's so easy to get wrapped up in the
news of the day and the trialsof practice and everything else.
My suggestion is you knowthere's got to be some pathway
out.
You know whether it's taking ajog on the weekends and going
for a long walk or jog or travel.
(44:35):
But you know you, you've got toget away from the pressures of
both work and and everythingelse we're facing and then just
like, veg out.
I, when I do all these littlejogs that I do on the weekends
and work out.
I don't tune into musicgenerally but podcast right.
But as great as this podcast is, you know, if I need to veg out
(44:57):
and that's because I'm ahistory fanatic.
There's a great number of BBCpodcasts.
They're really witty.
One's called You're Dead to Me.
And they just take random deadhistorical figures and do just a
great little witty analysis ofit and it's just a great way to
(45:18):
tune out.
Kelly Twigger (45:19):
Oh, I love that one.
I'm going to check that one out.
That sort of reminds me of whenwe used to listen to Paul
Harvey's the Rest of the Story.
Xavier Rodriguez (45:26):
Yeah.
Kelly Twigger (45:26):
Yeah, yeah, that's fantastic.
Thanks so much, judge.
Judge, I really appreciate youbeing here today.
Thanks so much for joining us.
Look forward to the paper, sowe'll try to share that with the
audience as well.
If and when that comes out, andif I can help in any way, you
know where to reach me.
Xavier Rodriguez (45:39):
Thank you, good to see you and see you soon
.
Kelly Twigger (45:43):
Wow, what a fantastic conversation with
Judge Rodriguez to wrap ourfirst episode of the Newly
Branded Meet and Convert podcast.
I think, in a lot of ways, ourepisode asks more questions, or
poses more questions than itanswers for you on the concepts
of possession, custody orcontrol, and I'll kick this off
to you to really take theconversation that we had here
(46:06):
and go to your organizations, goto your clients and really
understand what is the positionthat you want to be able to your
organizations, go to yourclients and really understand
what is the position that youwant to be able to take when it
comes to mobile device data andwhat is the best way to
construct policies, procedures,process to be able to take that
position.
Now, obviously, that's going tochange based on the facts of
each case, but there areoverarching decisions that you
(46:26):
will want to make and, as ourdiscussion illuminates, there's
not a lot of guidance out thereon what the best approach is.
So not only do you need to takethat position in an educated
way, but you need to be able toinform your counsel so that your
positions are consistentlyapplied across all of your
discovery matters in litigation.
And that's a wrap.
(46:47):
Once again, thanks to oursponsor, modeone Technologies,
with whom we worked together tocreate the Mobile Minute segment
that kicked off with thisepisode.
If you're interested inlearning more about ModeOne
Technologies' remote mobiledevice collection tool, please
visit them at modeoneio.
Please visit them at mode1.io.
(47:14):
We'll be sure to include JudgeRodriguez's suggestion from the
You're Dead to Me podcast, aswell as all the decisions that
we discussed in the show notesbelow, and thanks for joining us
so much on this episode.
If you've got any feedback forus for the podcast or topics
that you'd like to see covered,please feel free to reach out to
me at podcasts at minerva26.comand we'll get those taken care
(47:35):
of.
Finally, if you've enjoyed thispodcast, we would love if you
could share it with yourcolleagues, friends, other folks
who may enjoy it, and alsosubscribe on your favorite
podcasting platform or leave usa review.
Thanks so much.
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