In re Class Action Settlement Administration Litigation, Misc. A. No. 25-179 (JDB), MDL No. 3162 (D.D.C. Oct. 5, 2026), full opinion (PDF)
A party drafting requests for ESI needs to know which systems hold the relevant data. It also needs to know whether employees keep that data on personal devices. Judge John D. Bates of the U.S. District Court for the District of Columbia ruled on October 5 in MDL No. 3162. He decided how much the defendants must disclose under Rule 26(f) about their systems and their custodians' personal devices. The ruling came while the defendants' motions to dismiss were pending, before general discovery had opened. The court ordered disclosures that identify where relevant data may be stored. It treated volume estimates as premature and preservation details as beyond what Rule 26(f) requires.
What happened
Before the parties' Rule 26(f) conference in June, the plaintiffs sent the defendants informal ESI requests and draft requests for production. After the court directed the defendants to disclose custodians and data sources, they identified both custodial and non-custodial sources. The plaintiffs considered those disclosures deficient in several areas. When the parties could not agree on the scope of the defendants' Rule 26(f) obligations, the court ordered briefing.
The court's analysis
For most requests, the court asked whether the disclosure would help the parties plan discovery. According to the plaintiffs, several defendants had made acquisitions during or before the relevant period without disclosing the predecessor systems. The court ruled that the plaintiffs may learn now which undisclosed predecessor IT systems from past acquisitions hold data from that period. The disclosure also covers the types of data in those systems and whether the defendant has migrated the data to other systems. In the court's view, that limited information would help the parties identify the systems on which relevant data may be stored. The court added that it would not require the comprehensive IT history the defendants had objected to providing.
The court also ordered disclosures about custodians' personal devices. In the plaintiffs' account, several defendants had acknowledged that disclosed custodians used personal devices for substantive business communications. Each defendant must state whether its disclosed custodians have potentially relevant data on personal devices. A defendant must also say whether it had a bring-your-own-device (BYOD) or similar policy during the relevant period and when that policy took effect. The order further requires each defendant to state whether mobile device management (MDM) software was in place for the policy. Defendants must also disclose whether the policy covers the custodians' devices. The court explained that the answers will help the plaintiffs determine whether the defendants alone can supply the personal-device data. When custodians hold data the defendants cannot supply, the plaintiffs may also need third-party subpoenas to those custodians.
The court excluded preservation steps from both ordered disclosures. It noted the defendants' representation that they are complying with their preservation obligations. Rule 26(f), the court reasoned, does not require any particular disclosures about preservation protocols.
The court declined to require estimates of data volume by source. Estimates computed before general discovery, it reasoned, would be overly speculative and unhelpful. The court noted that such estimates may become appropriate once the plaintiffs serve discovery requests, should the case reach general discovery.
The plaintiffs' challenges to the existing disclosures also failed. On custodians, the court concluded that the defendants' disclosures were adequate at this stage. The plaintiffs, in its view, had not shown how any specific disclosure fell short. Any dispute over adding custodians, the court said, can be litigated in general discovery. The court also accepted the defendants' subject-matter descriptions of non-custodial sources as sufficient for discovery planning.
Why it matters
A defendant that has grown by acquisition should expect questions about inherited systems before formal document requests are served in general discovery. An inventory of legacy systems, the data types in each, and any migrations prepares counsel for the Rule 26(f) conference.
Employees who conduct business on personal devices raise the question whether the employer controls the business data on those devices. Counsel can prepare an answer by assembling the history of the company's BYOD policies and MDM coverage for each custodian. A requesting party should ask about those policies early enough to plan custodian subpoenas within the discovery schedule.
At the planning stage, a requesting party is more likely to succeed with requests that ask where the data is stored than with requests about volume. A court that reads Rule 26(f) to require no particular preservation disclosures may refuse requests for details of preservation steps at this stage. A party seeking more custodians early needs to show how a specific disclosure falls short.
The full opinion is available as a PDF.
