Episode 101: Understanding Possession, Custody, and Control in ediscovery

In episode 101 of the Case of the Week series, Kelly Twigger discusses the Mickelson v. PGA Tour, Inc. decision from November 2022. The case addresses the important issue of possession, custody, and control in ediscovery, specifically in relation to the collection and production of custodial ESI from agents. The Court held that the players’ agents’ materials were the subpoenaed party’s control and must be produced. This highlights the need for legal professionals to understand the law of the jurisdiction they are working in when dealing with agency issues related to possession, custody, or control, and emphasizes the importance of being prepared to make an argument when including parties in requests or subpoenas beyond the immediate person or entity holding the data.

Introduction

Welcome to episode 101 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, and I’m very happy to be with you here today. Thank you so much for joining me.

We are fresh off Legalweek 2023 in New York City. It was fantastic to see folks in person and get back to having some conversations about the development of technology and education in ediscovery.

We rolled out our newly launched eDiscovery Academy and had the opportunity to sit down with many of you to talk about how this can fit into your programs, what you’re looking for in education and training for your clients. We loved having those discussions. So, thanks to those of you that sat down with us. Just before Legalweek we released our 2022 Case Law Report detailing the happenings in 2022, together with what to watch for in 2023, some of which we’re already starting to see, and we had discussions about at Legalweek.

All right let’s dive into this week’s decision. This week’s decision comes to us from an antitrust matter pending in the Northern District of California. This one’s been in the news lately and was included in our first edition of ESI in the News. The complaint was filed by multiple professional golfers and the LIV Golf Tour against the PGA Tour, claiming that the PGA Tour’s refusal to allow golfers to participate in the LIV Tour is a violation of the Sherman Antitrust Act.

If you follow professional golf, you know this story well. Essentially, the LIV Golf Tour was started by a consortium of folks in Saudi Arabia and they invited PGA Tour professionals to play on the LIV Tour. The PGA essentially said, “No, you can only play on our tour, and if you leave our Tour, then you won’t be allowed to participate.” There have been a number of things that have happened in and outside the lawsuit, but this particular decision is going to give us some really good insight into the issue on possession, custody, and control under Rule 34 and 45. This case is assigned to United States District Judge Beth Freeman. Judge Freeman has assigned the case to United States Magistrate Judge Susan van Keulen for discovery issues. This decision that we’re going to review is from Magistrate Judge van Keulen.

This decision is titled Mickelson v. PGA Tour, Inc. I’ll tell you right now that even as you look at these decisions and eDiscovery Assistant, as they transpire throughout this litigation, they all have different titles. Not really sure why that is, because they’re all part of the same docket. You’ll see different titles, but they’re all linked as decisions in the same matter in eDiscovery Assistant. This decision we’re looking at is from November 17th of 2022.

Facts and Analysis

This decision is before the Court on a dispute about the collection and production of custodial ESI from agents who represent four of the players who brought the original complaint. Those players, who include Phil Mickelson, who is titled in the caption, dismissed their claims in September of 2022, shortly after the Court denied the party’s motion for a preliminary injunction against the PGA Tour. The PGA Tour then sent subpoenas to all four of the players—not to their agents, but to the players—that defined the responding party for the subpoenas to include the players’ “attorneys, agents, or any person acting on their behalf.”

Although the decision doesn’t state it outright, it appears that the players objected to providing ESI from their agents, claiming that it was not within their possession, custody, or control under Rules 34 and 45 of the Federal Rules of Civil Procedure. Remember that these players were parties, but then left the action so now they are third parties, and you’re talking about additional people who may represent or have business with those players.

In reviewing the dispute, the Court stated that control, as that term is included in Rules 34 and 45, is generally defined as, “The legal right to obtain documents upon demand.” The Court goes on to state that “Under the established 9th Circuit law, materials in the possession of an agent are within the control of the responding person and must be produced.”

Now, there are a few other cases that the Court cites in this decision, all of which are included in eDiscovery Assistant, that kind of have more of an in-depth review of that agency. They talk a little bit more about parent corporations and subsidiaries, but here we’re talking about a strict agent relationship.

The Court also noted that the player’s request to identify responsive documents by search terms was too narrow and concluded that the custodial ESI, which included both email and device level data, was required to be produced. With regard to the search term dispute, Judge van Keulen also found that players were required to use the search terms the parties had previously agreed to in their ESI protocol over the agent’s data “with the addition of added limiter terms designed to limit the scope of the results to materials related to their agent’s representation of the players and not other potential principles” and to produce all non-privileged documents.

Essentially, the Court says, okay, we get that you’re concerned that your agent represents a lot of people, but we only want them to be providing responsive documents limited to your representation so we can provide some limiters as to those. Generally speaking, those in text messages, which is largely what we’re talking about here, are going to be dealt with from a collection perspective. Collection tools allow you to collect text threads to and from an individual person or by group, so those can be easily limited if the parties can negotiate those effectively.

Takeaways

What’s most important here—and this is where we get to the takeaways from this decision—is that this is a very important issue in ediscovery case law—the question of what constitutes possession, custody or control. If you recall back from one of the more recent episodes of our Case of the Week series, we talked about the In re Pork Antitrust Litigation case. We also talked about that at the University of Florida eDiscovery Conference. We’ll probably address it in some other context. In that particular case, there was a discussion of how the mobile device policy of that organization impacted its ability to claim possession, custody, control over text messages on mobile devices from former and current employees at the company.

Here we’re talking about text messages of the player’s agents. Some of those messages may be to and from the player, others may be between other parties. This is a very interesting dynamic that the Court is saying this subpoena, which essentially would have been issued under Rule 45 because these players were no longer parties to the litigation at the time they were issued, is saying that you have control over your agent’s data. That’s an important distinction in the 9th Circuit versus other jurisdictions across the country.

The point is this: when you are thinking about agency as it relates to possession, custody or control, you need to understand the law of the jurisdiction you’re working in. That’s something you’re going to want to think about early on as you’re putting together your discovery strategy, because you want to be able to circumvent a lot of the Rule 45 issues.

We see in third party subpoenas a real challenge in getting information from third parties in a timely fashion, that allows us to use it in discovery, in a format that’s actually usable in discovery. Third parties who don’t have the same kind of obligations that parties to the litigation do often take as many shortcuts as possible in responding to those subpoenas. It can be very difficult and limit the ability to use that data effectively in litigation. It’s really important for you to think about how you can get to that data and how you can get it in the most effective form and in the most timely manner. Possession, custody or control is one of those issues to think about.

This is a very hot issue in ediscovery case law. Already in 2023, we’ve got 59 decisions over the first two and a half months of the year that are tagged with that issue in our database. There were an additional 284 decisions on possession, custody and control in this database in 2022, this decision being one of them.

Finally, you need to know in advance of issuing discovery requests or subpoenas how the jurisdiction that you are in addresses this important language on possession, custody or control. Be prepared to make an argument if you are including parties in the request or subpoena that are beyond the immediate person or entity with the data or to whom the subpoena is directed.

Conclusion

All right, that’s our Case of the Week for this week. Thank you so much for joining me. We’ll be back again next week with another decision from our eDiscovery Assistant database. If you’re interested in doing a free trial of our case law resource database or seeing our new eDiscovery Academy, you can sign up to get started, or register for our weekly demo or schedule a private demo.

Thanks so much. Have a great week.