The custodial electronically stored information (ESI) of nonparty golfers’ agents was within the golfers’ possession, custody, or control such that the golfers were required to collect and search the ESI and produce relevant documents, according to this recent decision from U.S. Magistrate Judge Susan van Keulen of the U.S. District Court for the Northern District of California. The concepts of possession, custody, and control are dealt with on a regular basis by our team. 

In Mickelson, et al. v. PGA Tour, Inc., No. 5:22-cv-04486-BLF (N.D. Cal. Nov. 17, 2022), professional golfers Phil Mickelson, Talor Gooch, Hudson Swafford, and Ian Poulter argued that their agents’ ESI, including email and device-level data, was not within their “control” such that they could collect and produce it pursuant to subpoenas issued by the defendant, PGA Tour, Inc. The golfers were initially plaintiffs to the antitrust litigation, but had dismissed their claims prior to the discovery dispute. Magistrate Judge van Keulen found that whether considered under the standard for responding parties to the litigation (Rule 34) or the standard for third parties to the litigation (Rule 45), the custodial ESI of the golfers’ agents was under their “control” because:

• “Control” is generally defined as “the legal rights to obtain documents upon demand,”
• Established Ninth Circuit law held that materials in the possession of an agent are within the “control” of the responding persons, and
• The players’ reliance on prior caselaw analyzing “control” in the context of complex corporate structures was inapposite.

The magistrate judge ordered the players to run the previously agreed-upon search terms over their agents’ ESI, emphasizing that the added limiter terms were designed to limit the scope of the results to materials related to the golfers and not other potential principals. The players were further ordered to produce non-privileged materials from the search that were responsive to the PGA Tour’s subpoenas.

Joe A. Tate, Jr., Member and Managing Director of CODISCOVR, focuses his practice on eDiscovery, information governance, and data management issues in the context of litigation and investigations. In his role, Joe is responsible for the day-to-day management of a team of attorneys and technologists that handle all phases of the eDiscovery lifecycle. Connect with Joe →

Nicole Gill, Counsel at CODISCOVR, concentrates her practice on electronic discovery in a variety of contexts, manages complex document review workflows, and routinely navigates data and privacy protection laws across many jurisdictions, both domestic and foreign. Nicole also implements quality control procedures to mitigate risk and counsels both clients and colleagues on issues related to eDiscovery, information governance and data management. Connect with Nicole →