Testing the Bounds of E-Discovery: How Courts Have Analyzed Employer Control Over Personal Devices
7.20.2026
As the modern workplace continues to evolve, many organizations are adopting bring-your-own-device policies, enabling employees to use personal smartphones, tablets and laptops for work-related activities. These policies bring with them significant legal complexities – particularly in the context of employment litigation. Personal devices often contain a wealth of potentially relevant information, including text messages, emails and other digital communications that, if subject to e-discovery, can make or break a claim. When claims like discrimination, wrongful termination or retaliation arise, courts must assess the extent of an employer’s control over its employees’ personal devices to determine whether such data must be preserved and produced. As case law develops, courts are taking varied approaches to the discoverability of personal devices, prompting a closer examination of recent trends in different jurisdictions’ legal standards on the matter.
Electronically Stored Information Preservation and Production Requirements Generally
Under the Federal Rules of Civil Procedure, parties engaged in litigation are under a clear and proactive duty to preserve and disclose electronically stored information relevant to the case. Rule 26 imposes an affirmative obligation on parties to provide, without awaiting a discovery request, any electronically stored information in their possession, custody or control that may support their claims or defenses. Following these initial disclosures, Rule 34 enables parties to formally request the production of electronically stored information that wasn’t initially disclosed. Critically, Rule 37(e) addresses the consequences of failing to preserve digital information that should have been maintained in anticipation or during litigation. If such information is lost due to a party’s failure to take reasonable steps, the court may impose sanctions, including adverse inference instructions or even dismissal of claims, depending on the severity of the prejudice caused.
In state courts, while procedural rules vary by jurisdiction, many have adopted discovery frameworks that closely mirror the Federal Rules of Civil Procedure, particularly regarding the scope of electronically stored information within a party’s possession, custody or control. Like in federal court, parties are generally expected to preserve electronically stored information once litigation is anticipated and to engage in good-faith efforts to identify, retain and produce such information during discovery.
The phrase “possession, custody or control” is not explicitly defined in the Federal Rules of Civil Procedure, leaving its interpretation to the courts – and resulting in a patchwork of standards across and within jurisdictions. This divergence has created challenges in determining the scope of discovery obligations and a lack of reliable legal guidance on the matter.
Clear Cell Phone E-Discovery Outcomes at the Margins
While the legal standards governing possession, custody or control vary across jurisdictions, certain scenarios yield predictable outcomes. At the margins – where facts are clear and usage patterns are well-defined – courts typically reach consensus.
When Personal Devices Are Clearly Discoverable
Electronically stored information from employee cell phones is readily discoverable when the devices are issued by the employer. In Owens v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College,[1] the court stated that employers maintain constructive control over employment-related data stored on company-issued devices. When a device is employer-issued, the company can regulate device use, enforce data retention policies, and direct employees to preserve or produce relevant communications. As such, company-issued devices fall squarely within the scope of discoverable electronically stored information under the Federal Rules of Civil Procedure.
When Personal Devices Are Clearly Not Discoverable
When employees’ cell phones are not company-issued, and not used for business purposes, the outcome is similarly predictable. In Muslims on Long Island, Inc. v. Town of Oyster Bay,[2] the Eastern District of New York addressed a discovery dispute concerning the town’s obligation to produce electronically stored information from advisory board members’ personal cell phones. The underlying litigation involved allegations by Muslims on Long Island, Inc. that the Town of Oyster Bay had discriminatorily denied its application to expand a mosque. During discovery, Muslims on Long Island learned that the advisory board members did not use government-issued phones. Muslims on Long Island sought requested access to the board members’ personal devices, asserting the potential for relevant communications. The town refused, and the group moved to compel discovery.
The court denied the motion to compel, finding that Muslims on Long Island had not met its burden to show that the personal devices were used for official business. The court emphasized that the group failed to identify any prior instances where the board members used personal phones for work-related communications. Additionally, declarations from board members stated that they did not have each other’s phone numbers, did not maintain any board group texts and had not exchanged any messages concerning Muslims on Long Island’s application.
This case demonstrates that the absence of work-issued devices or mere speculation of work-related use of personal devices is not enough to compel discovery. To make personal devices discoverable, a party must present specific, credible evidence that a personal device was used to conduct relevant business. Discovery must be targeted and grounded in factual support – not just possibility.
The Gray Area of Cell Phone E-Discovery
While some cases involving electronically stored information on employees’ personal devices present clear outcomes – either plainly discoverable or clearly outside the scope of discovery – many fall into a legal gray area. In these middle-ground scenarios, courts have turned to a range of standards to determine whether such data falls within a party’s “possession, custody or control” under the Federal Rules of Civil Procedure. These standards include the legal right standard, the legal right plus notification standard, the practical ability standard and a multi-factor approach. Federal district courts within each circuit have historically applied multiple standards, illustrating the fragmented and evolving nature of this critical area of e-discovery law. Even within each standard, courts continue to interpret and apply these standards differently, contributing to the uncertainty that litigants must navigate
Legal Right Standard
Under this approach, courts focus strictly on legal entitlement. If a party has a legal right to obtain the data in question, courts applying this standard hold that the data is within the party’s “possession, custody and control.” This triggers the obligation to preserve, collect, search and produce the electronically stored information during discovery.
In Weston v. Docusign, Inc.,[3] the Northern District of California applied the legal right standard to determine whether a company had sufficient control over employees’ personal devices to compel production of text messages. In the litigation, the plaintiffs alleged that Docusign misled investors and sought discovery of text messages between key executives related to the issue. The court found that Docusign’s employment agreements and internal policies expressly authorized the company to access and retrieve business-related communications from employees’ personal devices. Because Docusign had a contractual right to access the data via these agreements, the court held that the company had sufficient control under Rule 34.
Legal Right Plus Notification Standard
This standard builds on the legal right approach by adding a duty to inform. If the responding party has a legal right to obtain certain electronically stored information, it must preserve and produce it. Additionally, if the party knows of additional relevant information that it cannot legally access – such as data held by a third party – it must notify the requesting party of the existence of that data and identify the third-party custodian.
There is not currently a notable case applying the legal right plus notification standard in the context of electronically stored information and mobile devices, but this standard has been applied in other traditional discovery contexts where a dispute as to possession, custody, or control arises.
Practical Ability Standard
Here, the focus shifts from legal entitlement to practical access. Irrespective of a formal legal right to the data, a responding party is required to preserve and produce any electronically stored information it can realistically obtain. Feasibility of access – rather than ownership or legal control – is the key consideration in determining whether the data falls within a party’s discovery obligations.
In Allergan v. Revance Therapeutics,[4] the U.S. District Court for the Middle District of Tennessee applied this standard in an e-discovery dispute. Allergan, alleging trade secret misappropriation, sought communications among Revance employees from their personal devices. The court held that Revance did not have control over the devices, citing its bring-your-own-device policy and employee handbook, which did not grant the company the practical ability to search for, collect and produce data from employees’ personal devices. Moreover, Allegan failed to show that Revance had previously accessed such data in the ordinary course of business or that employees were cooperating or had a financial stake in the litigation.
Although some courts continue to apply the practical ability standard, it has faced growing criticism from both courts and scholars for producing inconsistent and inequitable outcomes.[5] This criticism may signal a trend away from the standard’s use in future cases.
Multi-Factor Approach
Federal courts are increasingly adopting a multi-factor approach to assess an employer’s “possession, custody and control” over employees’ personal devices for purposes of e-discovery. This analysis considers various factors depending on the court and circumstances. Courts typically consider factors such as:
- The frequency and extent of business use of the device.
- The employer’s legal or practical access to the data.
- The existence of company policies governing personal device use.
- Whether the employer issued or subsidized the device.
This approach allows courts to focus on the contextual relationship between the employer, employee and data, acknowledging the realities of modern work environments and increasing reliance on personal devices for professional communication.
In Miramontes v. Peraton, Inc.,[6] the Northern District of Texas applied this multi-factor analysis to assess whether Peraton had control over text messages exchanged on an employee’s personal phone. The issue arose from an employment discrimination claim, where the plaintiff, Carlos Miramontes alleged that his termination was based on age and race. After sending a litigation hold letter including relevant text messages, and directly informing Miramontes’s director of his duty to preserve emails related to the claims, Miramontes later discovered that his supervisor had deleted text messages relating to his termination.
The court rejected the legal rights test, explaining that “the realities of modern business require a fact-specific approach.” To determine whether Peraton had a duty to preserve the text messages from Miramontes’s supervisor, the court considered four factors:
- Whether the employer issued the devices.
- How frequently the devices were used for business purposes.
- Whether the employer had a legal right to obtain communications from these devices.
- Whether company policies address access to communications on personal devices.
Although the messages were on a personal phone, the court found that Peraton had control over the electronically stored information because its employees routinely conducted business on their personal phones.
Under the multi-factor approach, when employees use personal devices for work and the employer is aware of this practice, courts are likely to find that the employer has sufficient control to trigger preservation duties.
Mitigating E-Discovery Risks Within Your Organization
Given the evolving and often inconsistent legal standards governing e-discovery, employers should take proactive steps to reduce the risk of discovery disputes and sanctions. The following strategies can help organizations navigate this complex landscape more effectively:
- Develop a comprehensive bring-your-own-device policy. Clearly articulate the employer’s right to access work-related content stored on employees’ personal devices. The policy should outline expectations for cooperation during litigation.
- Obtain employee consent. Secure written consent from employees acknowledging the employer’s right to access, preserve and produce relevant data from personal devices in the event of litigation or investigation.
- Revise litigation hold procedures. Ensure that litigation hold notices explicitly instruct employees to preserve relevant communications and documents stored on personal devices, not just on company systems.
- Regularly review and update policies. Stay informed of the evolving legal standard and court decisions around e-discovery. Periodically review and update the employer’s e-discovery policies to ensure legally compliant practices.
This article appears in Labor and Employment Law Journal, a publication of the Labor and Employment Law Section. For more information, please visit nysba.org/labor.
William C. Martucci practices nationally in business and employment litigation in the Shook, Hardy & Bacon LLP’s New York and Washington, D.C., offices. He focuses on complex class action as well as business to business litigation, business torts and unfair competition. His jury work has been featured in The National Law Journal.
Maddie Bechtel is a litigation associate at Shook, Hardy & Bacon LLP, where her practice focuses on complex class action litigation. She earned her J.D. with honors from the University of Nebraska.
Endnotes:
[1] Owens v. Bd. of Supervisors of La. State Univ. & Agric. & Mech. Coll., 695 F. Supp.3d 750 (M.D. La. 2023).
[2] Muslims on Long Island, Inc. v. Town of Oyster Bay, No. 25-CV-00428, 2025 WL 1582250 (E.D.N.Y. June 4, 2025).
[3] Weston v. Docusign, Inc., No. 22-CV-00824-WHO, 2024 WL 3446924 (N.D. Cal. July 15, 2024).
[4] Allergan, Inc. v. Revance Therapeutics, Inc., No. 3:23-CV-00431, 2025 WL 984792 (M.D. Tenn. Mar. 17, 2025).
[5] The Sedona Conference, Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control,” 17 Sedona Conf. J 467, 528 (2016).
[6] Miramontes v. Peraton, Inc., No. 3:31-CV-3019-B, 2023 WL 3855603 (N.D. Tex. June 6, 2023).
