The U.S. District Court for the Eastern District of New York addressed the standard for compelling a party to collect electronically stored information (ESI) from the personal mobile phones of its employees in Muslims on Long Island, Inc. v. Town of Oyster Bay.

 The Town of Oyster Bay (TOBAY) denied plaintiffs, a Muslim congregation located in Bethpage, New York, and two of the congregation’s leaders, approval to build a mosque. In response, plaintiffs sued for alleged violations of the Religious Land Use and Institutional Persons Act, the First and 14th Amendments to the U.S. Constitution, and the New York State Constitution.

During discovery, plaintiffs requested, among other things, that TOBAY produce ESI from the personal cell phones of the Oyster Bay Planning Advisor Board (PAB) members who voted against plaintiffs’ application. Plaintiffs also sought ESI from the personal cell phones of other TOBAY document custodians. TOBAY issued responses and the objections indicated that board members did not receive work phones and objected to any request to search the personal devices for responsive communications. Plaintiffs moved to compel production on the basis that it was “more likely that [the board members] had conversations about [plaintiffs’] application on their personal devices” and messages involving “religious discrimination and religious animus are not likely to be sent through ‘official mediums’ like Town-owned email accounts.”

In opposition, defendant argued that the absence of work-issued cell phones “does not justify blanket access to personal devices” and there was “no reasonable likelihood that any responsive communications” not already produced from TOBAY’s server “exist[s] on their cell phones.”

Magistrate Judge Wicks’ thorough analysis begins with a survey of the relevant rules, including Rule 26(b)(1), which provides the scope of discovery (i.e., a party is entitled to discovery on “any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case”), and noting that relevance is “construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on any party’s claim or defense.” He then explains that Rule 34 permits a party to “serve on any other party a request to produce documents and ESI within the party’s possession, custody, or control.”  Here, because the relevant inquiry is whether TOBAY had “control” of the personal cell phones, the court goes on to explain that a party is deemed to “control” documents that it has “the legal right or the practical ability to obtain — even where those documents are in the physical possession of non-parties.” However, the demanding party has the initial burden of demonstrating the party has control of the requested documents. Moreover, once the propounding party demonstrates a sufficient showing of “control” necessary to produce responsive ESI from a personal device, that party must further provide “some justification for its suspicion that relevant messages may be contained on the employees’ personal devices.”

Applying this standard, Magistrate Judge Wicks quickly rejects plaintiffs’ arguments that the board members were more likely to use their personal cell phones because they did not have town-issued phones and that “explicit statements of religious animus are less likely to be shared through official mediums than through informal channels, like text messages.” Noting plaintiffs offered no “proof or plausible explanation for the grounds behind this hypothetical justification”Magistrate Judge Wicks explains that decisional law makes plain the propounding party must set forth “specific, prior incidents or examples where the employee’s personal accounts or mobile devices were used for work purposes.” Were plaintiffs’ unsubstantiated request sufficient, Magistrate Judge Wicks observes that “unfettered discovery over personal devices and fishing expeditions into employees’ personal messages” were likely. And so, Judge Wicks declined “[w]ithout some indicia that these personal devices were in fact used for business purposes” to compel them to be searched.

Accordingly, Magistrate Judge Wicks denied plaintiffs’ motion to compel, but “without prejudice and with leave to renew should any evidence later reveal that personal mobile devices were used.”