## Facts

- Robert and Christine Brown, former sales employees, sued Tellermate Holdings Ltd. alleging age discrimination and related claims arising from their terminations.
- Tellermate used Salesforce.com, a cloud-based CRM platform, to store sales information and performance metrics used to assess sales employees.
- During discovery, plaintiffs sought historical Salesforce sales-performance data and related records relevant to Tellermate’s stated performance-based reasons for termination.
- Tellermate objected, asserting it could access only “real-time” data, not historical data, and that its contract with Salesforce prohibited producing Salesforce-hosted data to third parties in litigation.
- The court required review/production of the Salesforce contract; the contract did not support Tellermate’s asserted prohibition.
- The dispute arose in a broader discovery record marked by breakdowns in accurate fact-finding and communication about the existence, access, and producibility of electronically stored information.

## Issues

1. Whether historical sales data stored on Salesforce was within Tellermate’s “possession, custody, or control” for purposes of Federal Rule of Civil Procedure 34.
2. Whether Tellermate’s Salesforce contract barred production of the requested Salesforce-hosted sales data in litigation.
3. Whether Tellermate’s objections to producing historical Salesforce data should be overruled and production compelled.

## Decision

- The court granted plaintiffs’ motion to compel production of historical Salesforce-based sales-performance data and related materials.
- The court held Tellermate had sufficient “control” over the Salesforce-hosted data to require production under Rule 34.
- The court rejected Tellermate’s contract-based objection, finding no contractual language that prohibited production in litigation.
- The court directed Tellermate to produce responsive information within its control, including data hosted by Salesforce.

## Legal Principles

- Under Rule 34, “control” includes electronically stored information held by a third-party cloud provider when the responding party has the legal right or practical ability to access and obtain the data.
- A party cannot avoid discovery obligations by claiming lack of control solely because responsive data resides on a vendor’s servers when the party uses and can access the data in the ordinary course of business.
- Contract-based claims that production is prohibited must be supported by the contract’s actual terms; unsupported assertions do not justify withholding responsive materials.
- Discovery responses and objections require a reasonable factual inquiry into the client’s information systems, access rights, and relevant agreements before representing limits on possession, access, or producibility.

## Conclusion

The court compelled Tellermate to produce historical sales data stored in Salesforce, concluding the data was within Tellermate’s Rule 34 control and that no contractual restriction barred disclosure, thereby overruling Tellermate’s principal objections to production.


Brown v. Tellermate Holdings Ltd., No. 2:11-cv-01122, 2013 WL 1363738 (S.D. Ohio Apr. 3, 2013)