Legal Memorandum: Party's Control over Documents

Issue: Whether information or documents in possession or custody of a party’s counsel or experts is subject to the party’s control, for purposes of a discovery request.

Area of Law: Litigation & Procedure
Keywords: Discovery; Possession, custody or control of documents
Jurisdiction: Federal, Minnesota
Cited Cases: None
Cited Statutes: Fed. R. Civ. P. 34
Date: 07/01/2010

The production of documents will be required pursuant to Fed. R. Civ. P. 34 only if the documents are in the “possession, custody or control” of the party upon whom the request is served.  Rule 34; Estate of Young ex rel. Young v. Holmes, 134 F.R.D. 291, 293 (D. Nev. 1991).  “Control,” however, is often defined broadly to include both the legal right to obtain the documents and the practical ability to do so.  Prokosch v. Catalina Lighting Inc., 193 F.R.D. 633, 636 (D. Minn. 2000).

When challenged, a party seeking discovery has the burden to establish that the documents are in the opposing party’s control.  Pitney Bowes, Inc. v. Kern Int’l, Inc., 239 F.R.D. 62, 66 (D. Conn. 2006); Ice Corp. v. Hamilton Sundstrand Corp., 245 F.R.D. 513, 519 (D. Kan. 2007); Steele Software Sys. Corp. v. Dataquick Info. Sys. Inc., 237 F.R.D. 561, 565 (D. Md. 2006).  Generally, this burden requires more than the unsupported, broad allegation that the information or documents are within the party’s control.  Ice Corp., 245 F.R.D. at 519.  Instead, a party seeking the production of documents that may be in the possession of a nonparty must provide specific facts demonstrating that control exists with respect to the documents at issue.  Steele Software Sys., 237 F.R.D. at 565.

Obviously, the mere fact that an attorney-client or consultant relationship may exist does not mean that the client has “control” over all the papers in the attorney’s or consultant’s possession, nor even […]

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