Custody and Control

In a fairly short opinion and order, the district court in Weston v. DocuSign, Inc. 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. 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 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. So, what is the take-away for litigation counsel with respect to protecting the work product privilege?

“We are family.” If you are like many people, you can’t read those words without singing them. Unlike the joyous refrains of Sister Sledge, however, the idea of family may take on a more ominous tone when viewed in the context of familial corporate relationships and the obligation to preserve and/or produce electronically-stored documents or information in litigation. In today’s digital world, related corporate entities may share email servers or electronic databases or jointly engage agents to process or store their electronic data. The use of shared administrative or other departments may further cause the commingling of access to various corporate electronic data repositories. As technical advancements increase and further ease the flow of data between related companies, the question arises what discovery obligations a company may have to preserve or produce its affiliate’s electronic data in litigation to which the related entity is not a party.