Blurred Lines: Personal Devices, Proportionality, and Piercing the Work Product Privilege

In a fairly short opinion and order, the district court in Weston v. DocuSign, Inc.[1] analyzed whether the parties were entitled to the production of text messages from former employees’ personal devices and potential piercing of the attorney work product privilege. Weston is a class action securities fraud case in which Plaintiffs allege that Defendants made misrepresentations regarding the company's projected post-pandemic performance.

At the time of this order, each party sought additional discovery from the other party. Defendants sought all of Plaintiffs’ documents concerning, and all Plaintiffs’ or Plaintiffs’ attorneys’ and investigators’ communications with, any of DocuSign’s former employees. Plaintiffs sought texts from the personal devices of certain DocuSign employees or former employees that related to DocuSign information.

Defendants’ Requests

Plaintiffs filed an amended complaint in this matter. That amended complaint contained and relied in part on statements from confidential witnesses (“CWs”) who were former employees of DocuSign. The CWs’ identities had been revealed to the Defendants. Defendants alleged that Plaintiffs withheld CWs’ communications that called into question the integrity of the amended complaint. According to Defendants, a CW told Plaintiffs the amended complaint was “glaringly incorrect” and another asked that some allegations attributed to that CW be removed.[2] Certain such communications, however, had been produced to Defendants by CWs’ own counsel without any objection from Plaintiffs. Defendants, therefore, requested all Plaintiffs’ documents regarding any former DocuSign employees and any communications with such employees, including communications between Plaintiffs’ attorneys or investigators and former employees, so that Defendants could determine whether Plaintiffs had other information from former employees contradicting allegations in the amended complaint.

Plaintiffs agreed to produce their communications with the CWs but objected to producing more. The Court agreed, reasoning Defendants “overstate[d] what they [ ] discovered regarding the CWs” and holding the request was too broad and that such materials, including even the identity of the non-CW former employees Plaintiffs communicated with, were protected by attorney work product privilege.[3] The Court stated Defendants had not met their burden to pierce that privilege. However, the Court continued, the Defendants had the ability to depose the CWs and subpoena their documents. If Defendant’s subsequent discovery allowed them to “show good cause to pierce the attorney work product in the future,” then they would be entitled to additional discovery from Plaintiffs.[4]

Plaintiffs’ Requests

Plaintiffs requested Defendants produce texts regarding DocuSign from certain non-defendant DocuSign employees’ personal devices after narrowing the list of custodians for such discovery from 53 to 25 custodians. Defendants argued they did not have possession, custody, or control over the devices in question and that the discovery request was disproportionate to the needs of the case.

The Court held Plaintiffs established that DocuSign employees conducted some business by text, having provided over 20 examples of employees conducting work-related activities over text, and that Plaintiffs had appropriately limited their requests. The requested production was, therefore, “proportionate to the needs of the case.”[5] Additionally, DocuSign’s employment agreements allowed DocuSign to access and retrieve any “Company information” on an employee’s personal device.[6] Physical control of the devices was not necessary, because they had the right to obtain the texts that Plaintiffs requested. Because the request was proportional to the needs of the case and DocuSign had legal access to the texts in question, the Court ordered Defendants to produce the texts.

Waiver of Work Product Privilege

It is, of course, a litigation disaster to have the work product privilege protections pierced and to be ordered to turn over attorney notes, witness lists, and witness communications on the very subject of the litigation. Defendants argued Plaintiffs waived work product privilege protection of communications with CWs by not objecting to the production of the same by CWs’ counsel, yet the Court was not persuaded by that argument and reasoned that Defendants sought “much broader access than what the CWs’ counsel produced” including “additional information, involving many more individuals, with no apparent limitation as to scope.”[7]

The good news here is that the Court did not order Plaintiffs to produce the broad range of documents Defendants requested, nor did it indicate that if good cause were shown to pierce the privilege it would give the Defendants’ everything they asked for. We are a long way here from actually piercing the work product privilege. The bad news is that the Court left open the possibility of considering the issue again once Defendants developed more evidence.

Discoverability of Information on Employee’s Personal Devices

In today’s world, employees are likely to communicate about work any time of the day, from any location, and on a myriad of types of devices, many of which the employer may not directly control. Nevertheless, an employer may very well be required to produce such information. Depending on how prepared an employer is to access that information, obtaining information from employees’ personal devices may be time consuming, difficult, upsetting to the employees involved, and disruptive to ongoing work productivity.

The lesson of Weston, however, is not that an employer should avoid having the legal right to access work information on employees’ personal devices. Rather, it is that it should have a reasonable IT regime in place to control where and how such information can be accessed or accumulated by employees that is consistent with business and employee needs and efficiencies and with the possible need to preserve and access such information in the litigation context.

Conclusion

The issues in this opinion are not necessarily novel but illustrate significant concerns for litigants.

In a world where the lines between our personal and private lives are increasingly blurry, the possibility of discovery on personal devices should come as a surprise to no one, and a comprehensive litigation strategy should anticipate and encompass the potential issues involved. At the litigation stage, discovery of information on personal devices does not need to be left to the discretion of the court. The parties can always negotiate the scope and timing of discovery, and a thoughtful litigator may seek to shape the direction of discovery and what is codified in a discovery agreement. Is discovery on personal devices really necessary? Perhaps it could be left to later in the discovery process or be triggered by some agreed upon criteria. Perhaps a party could only request it if no information on a particular discovery topic is contained in documents directly controlled by the employer. Perhaps the information to be produced from personal devices could be limited or the specific employees whose devices need to be searched could be agreed upon.

So, what is the take-away for litigation counsel with respect to protecting the work product privilege? It should go without saying that you must be forthright in your pleadings. Having said that, there are undoubtedly valid reasons why a witness referenced in support of your pleading may disagree with how their information is portrayed in those pleadings. If you are aware that such a witness exists, it would behoove the careful litigator to be prepared in advance to defend the way such information is presented in its pleadings.

DISCLAIMER: The information contained in this blog is not intended as legal advice or as an opinion on specific facts. For more information about these issues, please contact the author(s) of this blog or your existing LitSmart contact. The invitation to contact the author is not to be construed as a solicitation for legal work. Any new attorney/client relationship will be confirmed in writing.