McEvoy

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

KRISTEN MCEVOY, Ca se No. 3:24-cv-01497-AR

Plaintiff, OPINION AND ORDER

v.

WASHINGTON COUNTY /

WASHINGTON COUNTY DISTRICT

ATTORNEY’S OFFICE,

Defendant.

_____________________________________

ARMISTEAD, United States Magistrate Judge

Before the court is the fourth discovery dispute between plaintiff Kristen McEvoy and

defendant Washington County District Attorney. In accordance with this court’s preference to

resolve discovery disputes informally, the parties presented their positions via letter to the court.

At issue is the production of Washington County employees’ personal text messages. In a May

discovery order granting in part McEvoy’s motion to compel (ECF 41), the court ordered

Washington County to produce relevant text messages. (Order, ECF 54 at 26.) In her letter,

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR

McEvoy asserts that Washington County has failed to comply with that order because it has not

supplemented its production with any previously unproduced texts. Washington County responds

that, following the court’s order, it requested responsive texts from employees. Management-

level and human resources employees searched their personal devices and confirmed that they

did not have any more messages to provide. Non-management employees, through their union

counsel, declined to provide responsive texts. McEvoy asks the court to order Washington

County to search for and produce responsive text messages or require Washington County to

confirm that responsive text messages were not preserved.

Under Federal Rule of Civil Procedure 34, a party must produce discovery that is within

its “possession, custody, or control.” In the Ninth Circuit, “[c]ontrol is defined as the legal right

to obtain documents upon demand.” In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999)

(citing United States v. Int'l Union of Petroleum & Indus. Workers, AFL-CIO, 870 F.2d 1450,

1452 (9th Cir. 1989)). Because McEvoy is the party seeking discovery, it is her burden to show

that Washington County has sufficient control over employees’ personal text messages.

International Union, 870 F.2d at 1452. With some exceptions, district courts in this circuit and

other circuits have coalesced around a set of factors to determine whether employee

communications on personal devices are within the “control” of the employer. Those factors are

(1) whether the employer issued the devices; (2) whether the devices were used for business

purposes; and (3) whether the employer has a legal right to obtain communications from the

devices. Krishnan v. Cambia Health Sols., Inc., 2:20-CV-574-RAJ, 2021 WL 3129940, at *2

(W.D. Wash. July 23, 2021) (collecting cases).

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR

As an initial matter, text messages on devices provided by Washington County for work-

related use are within Washington County’s control. If Washington County has not yet searched

employer-provided devices for relevant text messages within the scope of the court’s May order,

it is compelled to do so. However, it is the court’s understanding that McEvoy seeks text

messages on employees’ personal devices. McEvoy has not shown that those text messages are

sufficiently within Washington County’s control.

It is undisputed that employees’ personal devices were not issued by Washington County,

so the first factor weighs against finding that there is control. On the second factor, McEvoy

points to deposition evidence that indicates Washington County “conducted or discussed work

using their personal phones.” (See Mot. Compel, ECF 41 at 8-9.) None of the cited deposition

testimony sufficiently establishes that Washington County employees used their personal phone

for business purposes. On behalf of Washington County, Andrew Freeman testified that before

McEvoy’s employment ended, the county did not assign employees cell phones and that any

relevant text messages would be on personal cell phones. (Munsinger Decl. Ex. 21, ECF 42-21 at

28:10-17.) He did not testify, however, that employees routinely used their personal devices in

furtherance of work-related business, and the testimony of the other witnesses does not support

that finding, either.

For instance, fact witness Mackenna Krohn explained that she texted with McEvoy about

McEvoy’s baby shower, as well as McEvoy’s medical complications related to her pregnancy

and intermittent scheduling issues that arose as a result. (Id. Ex. 23, ECF 42-23 at 127:25-

130:24.) Another fact witness, Jessica King, expressed that Freeman may have discussed the

duration of McEvoy’s leave with her via text. (Id. Ex. 24, ECF 42-24 at 88:25-89:5.) Finally,

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR

District Attorney Kevin Barton stated that it was not his practice to use his personal phone for

anything work-related. (Id. Ex. 22, ECF 42-22 at 15:14-20.) The fact that some employees

occasionally discussed work on their personal devices does not sufficiently establish that those

devices were used for business purposes and thus within the “control” of Washington County.

See, e.g., Krishnan, 2021 WL 3129940, at *2 (despite evidence of texts between employees

discussing work-related material, plaintiff failed to establish that the devices were “routinely

used for business purposes or to what extent”); Reynolds v. City of Rochester, 6:23-CV-06506

FPG CDH, 2026 WL 1145810, at *15 (W.D.N.Y. Apr. 28, 2026) (that members and employees of

the Police Accountability Board communicated through personal devices, including occasionally

about work, did not “specifically show that such communications were in furtherance of PAB-

related business, as opposed to co-workers and colleagues having personal discussions”).

And, on the third factor, there is no evidence that Washington County has a legal right to

obtain communications from employees’ personal devices. McEvoy contends that, under the

litigation hold and state public records laws, Washington County has a duty to preserve

responsive texts. Freeman affirmed in his organizational deposition that employees are instructed

to preserve records on their personal devices in compliance with public records laws. (Munsinger

Decl. Ex. 21, ECF 42-21 at 28:18-29:01.) In response to McEvoy, Washington County asserts

that Oregon’s public records law does not give Washington County the right to compel

production of personal text messages from their employees. The court agrees—that right is

vested with the public. Washington County’s duty to preserve records and instruct employees to

do the same does not confer a legal right to compel employees to produce personal text

messages. And McEvoy does not present another source, like a handbook, policy, or contract,

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR

that would provide Washington County with the legal right to obtain personal text messages. The

third factor also weighs against that there is control.

Washington County asserts that, to ensure compliance with the court’s May order, it again

requested responsive text messages from employees. That certain employees searched and could

not find any more relevant texts, and some declined to do so, is not evidence of Washington

County’s failure to comply.1 Barton’s statement in his deposition that he did not “recall”

searching his personal phone does not cut against that finding. (Munsinger Decl. Ex. 22, ECF 42-

22 at 15:14-20.) For one, Barton stated that he did not use his personal phone for work-related

matters. For two, that deposition, and Barton’ statement, occurred before the court’s May order

granting in part McEvoy’s motion to compel. Taking Washington County’s representations in its

letter at face value, the court presumes Barton was asked again to provide any relevant text

messages and again determined that he did not have any to produce.

Even when the court has found that an employer has control over an employee’s personal

device, “courts have only required the employer to ask the employee to search and produce

responsive information.” Matter of Skanska USA Civ. Se. Inc., 3:20-CV-05980-LC/HTC, 2021

WL 4953239, at *3–4 (N.D. Fla. Aug. 5, 2021) (collecting cases across circuits). This court

agrees with the court in Skanska that, even where personal devices are used for business

purposes, employers are not entitled to seize and search the entire device themselves. Id. Here,

1 Nor is it evidence of spoliation. McEvoy’s belief that records have not been preserved

simply because no more texts have been produced is speculative. Freeman, on behalf of

Washington County, testified that record custodians were notified of their duty to comply with

document retention policies. (Munsinger Decl. Ex. 21, ECF 42-21 at 29:02-13.) Indeed, that few

text messages have been produced could just as easily indicate that Washington County

employees rarely used their personal devices to discuss work-related matters.

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR

Washington County has asked its employees more than once to search and produce relevant

texts. Given that McEvoy fails to establish that Washington County has control over its

employees’ personal text messages, that is sufficient to show compliance with the court’s May

order. See Goolsby v. County of San Diego, 2019 WL 3891128, at * 4 (S.D. Cal. August 19,

2019) (finding lack of control where plaintiff offered only speculation that personal devices were

used by employees and noting that, regardless, county had already asked employees to search for

and produce relevant information).

DATED: August 18, 2026

J RMISTEAD

United States isttate Judge

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McEvoy v. Washington County District Attorney, 3:24-cv-01497-AR