Liyele v. Aldad Medical NJ, PC, No. 2:25-cv-05619-NJC-JMW (E.D.N.Y. Oct. 30, 2026), full opinion (PDF)
An employee sued her employer and its senior director of people. She asked the court to order a search of the director's personal phone for texts and other mobile messages concerning the plaintiff. The request rested on a single email in which the director described calling the plaintiff. A magistrate judge in the Eastern District of New York concluded that the email was too little to justify suspecting the phone held relevant messages. The court denied the motion without prejudice. The plaintiff may renew it if evidence emerges that the director's phone and personal accounts may contain responsive work-related messages about the plaintiff.
What happened
The plaintiff sought the director's communications with company leadership about the plaintiff. She moved to compel a search of the director's personal phone for responsive texts. As an alternative, the plaintiff asked for declarations from the director and three other employees about whether they used personal devices for business.
The plaintiff's argument rested on the one call the director had described in an email to a non-party. Because the employer issues no work phones, the plaintiff argued, that call must have come from the director's personal phone. The defendants responded that the employer provides Zoom-based work lines and that the call went through one of them.
The court's analysis
Both sides accepted the governing test. The court asked whether the director controlled the phone, then whether the plaintiff had some justification for suspecting it held relevant messages. On control, the court concluded that the personal phone was clearly within the director's possession, custody, or control.
On justification, the court concluded that one email describing the call was insufficient at this time. In its view, the email did not justify suspecting that the director used her personal phone and personal accounts for work. The court noted the defendants' explanation that the call went through a Zoom work line. Even accepting the plaintiff's account of the call, the court observed, the plaintiff had identified no message from the director's personal accounts or phone number.
Along with the search, the court denied a request for amended interrogatory answers about the director's devices and accounts. It also declined to order the declarations. A deposition, it concluded, was the more appropriate place to ask whether the phone held responsive messages. For the same reasons, the court called the requests aimed at the three other employees premature.
Why it matters
When the phone belongs to a party, control is rarely in dispute. A motion to compel the search then turns on whether there is some justification, beyond mere suspicion, for thinking the phone holds relevant messages. An inference from company policy, such as the absence of work phones, invites the producing party to explain how a communication was actually made. The defendants did exactly that here.
The strongest foundation is a message. A text from the party's personal number that surfaces in another custodian's production gives the court something specific to rely on. Deposition testimony that the party texted colleagues about the dispute can serve the same purpose.
A requesting party should use the depositions of the phone's owner and other key witnesses to ask which phones and apps each witness used for work. It should also ask whether any of them carried messages about the dispute. Answers like those can support a renewed motion.
Producing counsel should learn early how key witnesses communicated about the dispute, including through personal phones or messaging apps. That inquiry tells counsel what the preservation obligation already reaches. It also prepares the client to answer a motion like this one with facts rather than argument.
The full opinion is available as a PDF.
