A federal court recently addressed a party’s request for access to the personal email account of the opposing party’s Director of Operations — and found that the requesting party failed to meet its burden of establishing that the account was in the opposition’s “control” as defined in Fed. R. Civ. P. 34, because it did not address the laws of the countries in which the opposing party and the director were located.

We provide defensible discovery while helping clients navigate both domestic and foreign data privacy laws and regulations.

In Owen, et al. v. Elastos Found., et al., No. 19-CV-5462, 2023 WL 2537287 (S.D.N.Y  Mar. 16, 2023), the defendant nonprofit, Elastos Foundation, produced more than 30,000 documents from sources associated with the director at issue. These sources included the director’s laptop, phone, professional email account, and his personal WeChat account, which he conceded he used for business purposes. However, the director refused to allow access to his personal email account, and the plaintiffs asked the Court to order Elastos to access the account and search it, either producing responsive documents or a report on the volume of search hits.

The Court denied the plaintiffs’ request, finding that the plaintiffs did not meet their burden of proving that the director’s personal email was within Elastos’s control. The Court reasoned:

• Plaintiffs did not show the individual had a duty under local law to allow access. The director was based in China and the defendant was registered in Singapore and had offices in China, yet plaintiffs did not discuss whether Singapore or Chinese law allowed Elastos to coerce the director’s compliance with the discovery request.
  
  
• There was no evidence that the party could coerce cooperation from the individual. Elastos advised the Court that it had no internal policy giving it control over the personal accounts of its personnel.
  
  
•  The individual was not willing to provide access. The director had extensively cooperated with Elastos’s discovery efforts by turning over his laptop and phone to be searched, sitting for deposition, and preparing a declaration detailing the foundation’s search processes. However, he refused to allow Elastos access to his personal email account.

The Court noted that even if plaintiffs had established control, it was not persuaded that the personal email address was used by the director to conduct Elastos business — plaintiffs pointed only to a single instance in which the director had received an Elastos business document on his personal email address. However, the director promptly forwarded that email to his work account, from which it was collected and produced to plaintiffs.

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 →