van Keulen, Susan, United States Magistrate Judge
v.
PGA TOUR, INC., Defendant
Counsel
William Vito Roppolo, Jr., Pro Hac Vice, Jodi Avila, Pro Hac Vice, Baker & McKenzie LLP Litigation Department, Miami, FL, Ashley Brooke Eickhof, Baker & McKenzie LLP Litigation Department, Washington, DC, Jeffrey Daniel Martino, Baker & McKenzie LLP Litigation Department, New York, NY, for Plaintiff Phil Mickelson.Rachel S. Brass, Lauren Dansey, Gibson, Dunn & Crutcher, LLP, San Francisco, CA, Robert C. Walters, Scott Hvidt, Gibson, Dunn & Crutcher, LLP, Dallas, TX, Dominic Surprenant, John B. Quinn, Kevin Yoshiwo Teruya, Quinn Emanuel Urquhart & Sullivan, LLP, Los Angeles, CA, Joshua Lipton, Kristen Ceara Limarzi, Gibson, Dunn & Crutcher, LLP, Washington, DC, Robert P. Feldman, Quinn Emanuel Urquhart & Sullivan, LLP, Redwood Shores, CA, for Plaintiffs Talor Gooch, Hudson Swafford, Matt Jones, Bryson DeChambeau, Abraham Ancer, Carlos Ortiz, Ian Poulter, Pat Perez, Jason Kokrak, Peter Uihlein.
Rachel S. Brass, Gibson, Dunn & Crutcher, LLP, San Francisco, CA, for Plaintiff LIV Golf Inc.
Brook Dooley, Keker, David Jason Silbert, Elliot Remsen Peters, Eric H. MacMichael, John Watkins Keker, Leo L. Lam, Nicholas Samuel Goldberg, Nicholas David Marais, Robert Adam Lauridsen, Sophie Anderson Hood, Thomas Edward Gorman, Maile Nell Yeats-Rowe, Nicholas Reiss Green, Stephanie Jill Goldberg, Taylor L. Reeves, Keker, Van Nest & Peters LLP, San Francisco, CA, Anthony J. Dreyer, Karen Hoffman Lent, I Matthew M. Martino, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, New York, NY, Patrick J. Fitzgerald, Pro Hac Vice, Skadden, Arps, Slate, Meagher & Flom LLP, Chicago, IL, for Defendant
ORDER RE: PLAYER AGENT DISCOVERY DISPUTE Re: Dkt. 153
Before the Court is the parties’ Joint Statement regarding their dispute over the collection
and production of custodial ESI from agents representing professional golfers Phil Mickelson,
Talor Gooch, Hudson Swafford, and Ian Poulter (collectively, the “Players”). Dkt. 153. The
Players were initially Plaintiffs in this action, until they dismissed their claims on September 27,
2022.
The Players have accepted service of the PGA TOUR, Inc.’s (the “TOUR”) subpoenas
seeking the production of documents. The TOUR’s subpoenas defined the responding party as
including the Players’ “attorneys, agents . . ., member[s], or employee[s], or any other person
acting on [their] behalf.” The federal rules require production of documents that are within the
“possession, custody, or control” of the responding person or entity. Fed. R. Civ. P. 34(a)(1).
That standard applies no matter whether the responding person is a party to the litigation or a
third-party subject to Rule 45. See In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999)
(“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
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,
[u]nder 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
at 1107). It is not credible that the Players cannot obtain responsive documents from their own
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
8617414 (N.D. Cal. Aug. 28, 2020), and its analysis of “control” in the context of complex
corporate structures is similarly misplaced.
Accordingly, the Court concludes that custodial ESI (email and device-level data) in the actual possession of the Players’ agents is within their “control” within the meaning of Rules 34 and 45. Accordingly, the Players are ORDERED to run the parties’ previously-agreed upon search terms over their agents’ ESI, with the addition of added limiter terms designed to limit the scope of the results to materials related to their agents’ representation of the Players and not other potential principals. The Players are further ORDERED to produce non-privileged materials responsive to the TOUR’s subpoenas. The Players are further ORDERED to provide the TOUR with a log of all responsive materials withheld on the basis of any claim of privilege or protection from disclosure.
SO ORDERED.