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Legal Tech: E-Discovery Case Spotlight: Custody and Control of Text Messages and Adverse Jury Instructions on Spoliation
New e-discovery cases continue to proliferate, spotlighting key trends regarding the handling of ESI in litigation. Two particularly noteworthy topics include:(1) Possession, custody, or control questions involving employee text messages; and 2) the role and form of adverse inference instructions to juries to address ESI spoliation. Understanding how courts are addressing these issues will more readily prepare counsel to address them during litigation.
Possession, Custody or Control Issues Involving Employee Text Messages
In re Pork Antitrust Litig. (D. Minn. 2022)
In this multidistrict litigation involving price-fixing allegations against large U.S. pork producers, the court denied plaintiffs' motion to compel defendant Hormel Foods Corporation to produce relevant, responsive text messages from its custodian employees and held that Hormel did not have possession, custody, or control over its employees' text messages. Plaintiffs had argued that Hormel's "bring your own device" (BYOD) policy provided the company with the "legal right" to obtain employee text messages because Hormel could remotely wipe employee personal devices. Plaintiffs additionally asserted that Hormel had the practical ability to obtain text messages from its employees since several employees had already agreed to have their phones imaged for preservation.
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