Owen v. Elastos Foundation

Background

Plaintiffs Mark Owen and James Wandling, individually and on behalf of others similarly situated, asked the court to order defendant Elastos Foundation to access and search the personal Google account of Ben Li, an Elastos employee, director of operations, and one of its three board members. Li was not a defendant. Plaintiffs requested that Elastos use previously agreed search terms and either produce responsive documents or provide a report describing the number of recoverable documents and search hits.

Elastos had already searched Li’s Elastos email account and produced more than 13,000 documents from that account. The parties reported that more than 30,000 documents had been produced from various Li sources, including his laptop, phone, and personal WeChat account. Li refused to allow the parties to search his personal Gmail account. The record showed a few connections between the accounts, including emails forwarded between them and Li’s participation in editing two Elastos documents through Google Sheets and Google Docs.

Court’s Analysis

The court addressed two issues. First, under Federal Rule of Civil Procedure 34, it considered whether Li’s personal Google account was within Elastos’s “possession, custody, or control.” A document may be considered under a party’s control when the party has the legal right, authority, or practical ability to obtain it from someone who is not a party. The party seeking discovery bears the burden of showing that practical ability.

The court noted that the relevant factors can include whether the corporation could discipline or discharge the individual for refusing to cooperate, whether the individual has a legal duty to provide the documents, whether the corporation previously obtained the individual’s cooperation, and whether the corporation asked for the documents and the individual refused.

The court found that plaintiffs had not met their burden. Elastos is registered in Singapore, has its primary offices in Shanghai and Beijing, and Li works in China. Plaintiffs did not address Singaporean or Chinese law concerning Elastos’s ability to obtain the account. Elastos also stated that it had no policies giving it control over data on personnel’s personal devices. Although Li had cooperated by allowing searches of his laptop and phone, sitting for a deposition, and preparing a declaration, defendants said he had repeatedly refused access to his personal email account. Plaintiffs offered no contrary evidence.

Second, the court stated that even if Elastos controlled the account, plaintiffs had not shown that Li used it to conduct Elastos business. The court identified only one instance in which Li received an Elastos business document at the Gmail address, and he promptly forwarded it to his Elastos account, where it was collected and produced. The court distinguished cases in which company directors or founders regularly used personal accounts for business communications.

Disposition

Judge Barbara Moses denied plaintiffs’ request to compel Elastos to search Li’s personal Google account. The court also noted that searching the entire account with the agreed terms would not necessarily show whether Li used it for Elastos work because some terms were common words that could produce many unrelated results. The court stated that plaintiffs may renew the request if further discovery reveals a valid justification for the search.