Jones v. PGA Tour, Inc.

1 UNITED STATES DISTRICT COURT [2] NORTHERN DISTRICT OF CALIFORNIA [3] SAN JOSE DIVISION [4] MATT JONES; BRYSON DECHAMBEAU; Case No. 5:22-CV-04486-BLF 5 PETER UIHLEIN; and LIV GOLF, INC., ORDER RE: PLAYER AGENT 6 Plaintiffs, DISCOVERY DISPUTE 7 v. Re: Dkt. 153 8 PGA TOUR, INC., 9 Defendant. [11] PGA TOUR, INC., [12] Counter-Claimant, [13] v. [14] LIV GOLF, INC., [15] Counter-Defendant. [16] Before the Court is the parties’ Joint Statement regarding their dispute over the collection [17] and production of custodial ESI from agents representing professional golfers Phil Mickelson, [18] Talor Gooch, Hudson Swafford, and Ian Poulter (collectively, the “Players”). Dkt. 153. The [19] Players were initially Plaintiffs in this action, until they dismissed their claims on September 27, [20] 2022. [21] The Players have accepted service of the PGA TOUR, Inc.’s (the “TOUR”) subpoenas [22] seeking the production of documents. The TOUR’s subpoenas defined the responding party as [23] including the Players’ “attorneys, agents . . ., member[s], or employee[s], or any other person [24] acting on [their] behalf.” The federal rules require production of documents that are within the [25] “possession, custody, or control” of the responding person or entity. Fed. R. Civ. P. 34(a)(1). [26] That standard applies no matter whether the responding person is a party to the litigation or a [27] third-party subject to Rule 45. See In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999) [28] (“the legal control test is the proper standard under Rule 45”); see also In re ATM Fee Antitrust Litig., 233 F.R.D. 542, 545 (N.D. Cal. 2005) (“Courts apply the legal control test to requests for 2 || documents under both Rule 34 and Rule 45”). “Control” is the generally defined as “the legal || right to obtain documents upon demand.” In re Citric Acid Litig., 191 F.3d at 1107-08 . Further, [uJnder established Ninth Circuit law, materials in the possession of an agent are within the || “control” of the responding person and must be produced. See, e.g., St. Jude Med. S.C., Inc. v. || Janssen-Counotte, 305 F.R.D. 630, 638 (N.D. Cal. 2015) (citing In re Citric Acid Litig., 191 F.3d 7 || at 1107). Itis not credible that the Players cannot obtain responsive documents from their own 8 || agents, which with the use of limiter terms relate only to the agents’ representation of the Players. || The Players’ focus on the means of identifying responsive documents — via agreed upon ESI || search terms — is too narrow. The reliance on Rojas v. Bosch Solar Energy Corp., 2020 WL 11 || 8617414 (N.D. Cal. Aug. 28, 2020), and its analysis of “control” in the context of complex 12 || corporate structures is similarly misplaced. 13 Accordingly, the Court concludes that custodial ESI (email and device-level data) in the 14 || actual possession of the Players’ agents is within their “control” within the meaning of Rules 34 15 || and 45. Accordingly, the Players are ORDERED to run the parties’ previously-agreed upon 16 || search terms over their agents’ ESI, with the addition of added limiter terms designed to limit the 17 || scope of the results to materials related to their agents’ representation of the Players and not other 18 || potential principals. The Players are further ORDERED to produce non-privileged materials 19 || responsive to the TOUR’s subpoenas. The Players are further ORDERED to provide the TOUR 20 || with a log of all responsive materials withheld on the basis of any claim of privilege or protection || from disclosure. 22 SO ORDERED. 23 Dated: November 17, 2022 usm varKul HON. SUSAN VAN KEULEN 24 United States Magistrate Judge