In a Robinson-Patman Act case, the defendant, Chrysler, moved to compel the plaintiff, Stevens Creek Dealership, to produce e-mails from employees’ corporate GMail accounts.

“Because Stevens Creek does not furnish all its employees with email accounts, many of them use their personal accounts for business purposes. Stevens Creek argues that these accounts are outside its ‘possession, custody, or control,’ so they are beyond the scope of party discovery. Similarly, because an outside vendor, AVV, maintains and operates Stevens Creek’s customer communications database, Stevens Creek contends that those communications cannot be discovered either. Chrysler responds that Stevens Creek still has control over its company information, whether it is stored in personal email accounts or in a vendor’s database.

“What does it mean for a party to have control over data like the data disputed here? ‘Control is defined as the legal right to obtain documents upon demand.’ Like the majority of circuits, the Ninth Circuit has explicitly rejected an invitation ‘to define “control” in a manner that focuses on the party’s practical ability to obtain the requested documents.’ Documents are not discoverable under Rule 34 if the entity that holds them ‘could legally—and without breaching any contract—continue to refuse to turn over such documents.’ ‘The party seeking production of the documents… bears the burden of proving that the opposing party has such control.’

“Chrysler has not carried this burden for the emails in personal accounts. Chrysler points to a Stevens Creek employee handbook that instructs employees to keep ‘internal information’ in the ‘sole possession’ of Stevens Creek, but this is not a contract and so does not create a legal right for Stevens Creek to take back any such information now stored in personal accounts. And as Stevens Creek pointed out at the hearing on this motion, even if the court were to order that Stevens Creek collect emails from its employees’ personal accounts, Chrysler has not identified any authority under which Stevens Creek could force employees to turn them over. The Ninth Circuit has recognized that ‘ordering a party to produce documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents.’ That is the case here. The motion to compel production from employees’ personal email accounts is DENIED.”

Matthew Enter v. Chrysler Group, No.13-04236, 2015 WL 8482256 (N.D.Cal. Dec. 10, 2015).