In a recent case from Puerto Rico, a court found that an employer will have to produce employees’ emails from personal email accounts, where such emails were used to conduct business.

 At a time when many employers are encouraging employees to bring their own electronic devices to work, use of these devices for business matters, can potentially subject an employer to a discovery request in litigation.  

 In a recent case in Kansas, the court found that the employer did not have possession, custody, or control of employees’ personal emails and therefore did not have to produce the emails in discovery.

 But a case from Puerto Rico takes a different approach.  In P.R. Telephone Co., Inc., v. San Juan Cable LLC, the court found that the company did have a duty to preserve relevant email from the personal email accounts of three of the company’s former officers.  The only facts given by the court as the basis for its decision is that the company “presumably knew” that its officers had used their personal email accounts to manage the company for seven years.

 Although the court did not order sanctions, it did find that there was a failure to preserve relevant evidence.  The court denied the motion for sanctions without prejudice, leaving open the possibility that the motion could be renewed if discovery revealed additional evidence of spoliation.

P.R. Telephone Co., Inc., v. San Juan Cable LLC, No. 11-2135 (GAG/BJM), 2013 U.S. Dist. LEXIS 146081 (D.P.R. Oct. 7, 2013).