Matthew Enter., Inc. v. Chrysler Grp., LLC, No. 13-cv-04236-BLF, 2015 WL 8482256 (N.D. Cal. Dec. 10, 2015)
In this case, the court declined to compel production from Plaintiff’s employees’ personal email accounts because Plaintiff did not have control of the emails for purposes of discovery. As to the contents of Plaintiff’s “customer communications database” maintained by a third party vendor, however, the court found that Plaintiff did have control of the ESI, as evidenced by the prior production of certain data at Plaintiff’s request.
Because Plaintiff—owner and operator of a car dealership—did not furnish all of its employees with email accounts, many used their personal accounts for business. Accordingly, Defendant sought to compel production of relevant emails from those personal accounts. Plaintiff argued that it did not have “possession, custody, or control” of the emails and that they were outside of the scope of party discovery.
In the majority of circuits, including the Ninth, “'[c]ontrol is defined as the legal right to obtain documents upon demand.’” These circuits have “explicitly rejected an invitation ‘to define ‘control’ in a manner that focuses on the party’s practical ability to obtain the requested documents.’” Thus, “[d]ocuments are not discoverable under Rule 34 if the entity that holds them ‘could legally—and without breaching any contract—continue to refuse to turn over such documents.'”
As evidence of requisite control, Defendant argued that the relevant employee handbook “instructs employees to keep ‘internal information’ in the ‘sole possession’ of [the dealership].” However, the court rejected Defendant’s argument, reasoning that the handbook was not a contract and did “not create a legal right for [the dealership] to take back any such information now stored in personal accounts.” Moreover, the court noted that even if it were to order Plaintiff to collect and produce the emails, Defendant had not identified any authority by which Plaintiff could force its employees to turn their emails over. Accordingly. Defendant’s motion was denied as to the at-issue emails.
As to the contents of a vendor-maintained database, however, the court granted Defendant’s motion to compel (thus declining to require the defendant to subpoena the third party directly) where Plaintiff’s control of the data had already been demonstrated by a prior production of such data at Plaintiff’s request.
A full copy of the court’s order is available here.