Galvan v. Rolling Lawns, Inc.
- Reznik
- 7:23-cv-06724
- U.S. District Court · Southern District of New York
- 8
In Galvan v. Rolling Lawns, Judge Reznik granted in part and denied in part Galvan’s discovery motion and made the filing public.
Nepamuceno Galvan, Rolling Lawns, Inc. and the other Defendants, and Defendants’ employees Carmen Vazquez and Alfonso Galvan.
What happened
In Nepamuceno Galvan v. Rolling Lawns, Inc. et al., Galvan sought additional electronically stored information, including text messages from the personal phones of Carmen Vazquez and Alfonso Galvan, who were Defendants’ employees. The requested messages covered January 1 through April 30, 2023.
The Defendants argued that they should not have to take possession of or search their employees’ personal phones. They proposed having the employees conduct their own searches and provide affidavits. The court found that the Defendants had control over relevant messages because the employees used their personal phones for business communications, and it found that targeted searches would not create an unacceptable privacy intrusion.
Judge Reznik granted in part and denied in part Galvan’s motion and granted in part the Defendants’ request. She ordered supplemental searches and production using agreed search terms and the specified date range, but did not require a particular search method. She required counsel and the two employees to submit affidavits about preserving and producing the messages. The court also directed the Clerk to make Galvan’s filing public.
The detailed version
- Galvan v. Rolling Lawns, Inc. · No. 7:23-cv-06724
- Reznik
- Feb. 26, 2025
Background
On January 31, 2025, Plaintiff moved for additional discovery from Defendants. The request sought text messages from the personal cell phones of Carmen Vazquez and Alfonso Galvan, two Defendants’ employees, for the period from January through April 2023. Plaintiff argued that relevant messages likely existed because the employees regularly communicated with the named defendants about business matters, including scheduling, absences, and project updates.
Defendants did not expressly object to producing relevant messages. Instead, they argued that they could not take possession of and search the employees’ personal devices. They asked to direct the employees to search their own phones and to permit Defendants to submit affidavits stating that the searches had occurred or that no responsive messages had been found.
Discovery Analysis
Federal Rule of Civil Procedure 34 permits discovery of documents or other items within a responding party’s possession, custody, or control. The court explained that control is broader than ownership or physical possession and can include the practical ability to obtain documents held by nonparties. Courts have also found that employers may control documents in their employees’ possession.
The court found that Defendants had control over relevant content on Vazquez’s and Galvan’s phones. The court understood that the two witnesses remained Defendants’ employees, and Plaintiff’s uncontested account showed that they had used their personal phones to communicate with the named defendants about work. Defendants had also produced some work-related messages from the witnesses’ personal phones, supporting a reasonable basis to believe that other relevant messages might exist.
The court rejected Defendants’ privacy objection. It reasoned that searches limited to the agreed search terms and the disputed date range should not invade privacy more than searches conducted by the employees themselves. The court therefore held that Defendants had a discovery obligation to produce all responsive electronically stored information from the two personal phones.
The court did not require Defendants to take possession of the phones or prescribe a particular method for conducting the searches. Under Rule 26(g), counsel must make a reasonable inquiry and certify that disclosures are complete and correct. Counsel may rely on client statements when appropriate, but counsel remains responsible for ensuring compliance with discovery obligations. Violations can result in sanctions.
Order on Discovery
The court granted Plaintiff’s motion to compel responsive supplemental electronically stored information from the phones of Carmen Vazquez and Alfonso Galvan. The searches must use the parties’ agreed targeted search terms and cover January 1, 2023, through April 30, 2023. The court did not direct Defendants on how to conduct the searches.
The court required Defendants’ counsel to supervise the searches, identify the efforts Defendants had made to preserve responsive electronically stored information from the beginning of the case, and submit affidavits from counsel, Vazquez, and Galvan. The affidavits must describe efforts to preserve and produce responsive information and state whether responsive documents were found during the relevant period, including why none were found if that was the result. Supplemental production was due March 21, 2025, and the affidavits were due March 28, 2025. The court stated that noncompliance could lead to further remedial action.
Accordingly, Plaintiff’s request was granted in part and denied in part, and Defendants’ request was granted in part.
Sealing Request
Plaintiff also asked to file the brief under seal because it referred to discovery documents marked confidential by Defendants. The court applied the presumption of public access to court filings and found that sealing was not necessary to protect higher values. The court found no apparent confidential business or financial information and no personal identifying information requiring protection.
The Clerk was directed to make ECF No. 91 public and to close out the entries associated with ECF Nos. 87 and 91.
Read the full 8-page opinion on CourtListener, the free public archive maintained by the Free Law Project.