There is something comic and paradoxical about that fact that we have near instantaneous access to information and communication these days but most of us have no idea where that much of the information or communication “at our fingertips” actually resides.
And what is a company’s obligation to produce employee emails when those emails are, strictly speaking, residing on a third-party’s server? U.S. Magistrate Judge Tony N. Leung (D. Minn.) recently address the question and answered it sensibly. If the employees have easy access to their emails, the employer can and should collect and produce them. If not, not.
New Minnesota Litigator Guest Poster, Fred Ramos, brings home the point:
Control is key. Under FRCP 34, a party is obligated to preserve and produce ESI that is not in its possession or custody, but is in its control. To determine control, courts generally look to whether the party has the right, authority or “practical ability” to obtain the documents from the third party with possession of the information.
And if the data has been archived by the third party? A subpoena is the proper vehicle to obtain information from the third party server that cannot be accessed by the employee in their normal day to day activity.