Understanding “Control” in Discovery Amid Evolving Communication Platforms

Recent court rulings highlight how challenging it has become to decide what information a party actually has “control” over in legal discovery, especially as people use an expanding mix of communication platforms. This diversification makes it harder to define who can access, preserve, or produce certain data.

Where parties once relied primarily on email and centralized company systems, today’s communications may span text messages, collaboration apps, cloud-based tools, ephemeral messaging services, and even personal devices. Each platform introduces different rules, privacy settings, and practical limitations on retrieval. As a result, judges must assess not only whether a party has a legal right to obtain certain information, but also whether they have the practical ability to do so.

This diversification has created significant challenges for litigants. Organizations must evaluate which platforms their employees use, what data those platforms retain, and what policies govern access. Individuals, meanwhile, may be asked to produce communications from apps they do not fully control or from services designed to minimize retention. Courts are increasingly forced to interpret “control” flexibly, considering factors such as contractual rights, workplace policies, and actual usage patterns rather than relying on traditional assumptions.

Together, these developments highlight a critical reality: as communication technologies evolve, so too must eDiscovery practices. Parties who fail to track and manage their use of diverse platforms risk disputes, sanctions, or incomplete productions. Clear policies and proactive data governance are becoming essential tools for navigating this shifting landscape.

· In Vaughn v. Solera Holdings, the court found the company had no obligation to produce Slack messages because its configuration lacked the required export license. (Clark, 2025)

Because there was no clear policy language giving Revance search rights over personal devices (beyond device configuration checks), and no evidence the employees used other apps for work, the Special Master found that Revance did not have Rule 34(a) control over those devices. (Austin, 2025)

REFERENCES

Rick Clark, CloudNine, The State of eDiscovery: Case Law and Hot Topics — Masters Conference Philadelphia Recap (Masters Conference, Philadelphia, Oct. 20, 2025).

Doug Austin, eDiscovery Today, Motion to Compel Searching of Devices Denied Due to BYOD Policies (May 20, 2025).