In civil discovery, litigants must produce information that is within their “possession, custody, or control,” subject to the applicable scope of discovery. However, federal courts have markedly differing definitions of “possession, custody, or control.” A uniform standard would further the goal of the just, speedy, and inexpensive resolution of many lawsuits.
Mike Hamilton’s blog Case Law Alert: Work-Related Messages on Employee Cell Phones Outside of Firm’s Duty to Collect – Exterro (Aug. 12, 2022), provides an excellent description of the differing “possession, custody, or control” standards in In Re Pork Antitrust Litigation, 2022 WL 972401 (D. Minn. March 31, 2022).
In Pork Antitrust, the District Court described the “legal right” and “practical ability” tests for determining when ESI is within a litigant’s possession, custody, or control. The court wrote that the Eighth Circuit had not ruled on the issue and cited to The Sedona Conference’s comprehensive “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control,’” 17 Sedona Conf. J. 467, 482-92 (2016).
The Sedona Commentary describes a split of authority and the resulting inefficiency:
The federal circuits have taken differing approaches to what constitutes possession, custody, or control under Rules 34 or 45. This has led to a lack of clarity for lawyers and litigants that must manage discovery or advise clients regarding the production of Documents and ESI in multiple jurisdictions. This is especially problematic given that in today’s digital world, borders have broken down and many businesses and individuals live their lives and conduct business nationwide.
17 Sedona Conf. J. at 482–83 (emphasis added). That lack of clarity has led to the expenditure of the resources of both litigants and courts. See, e.g., Robinson v. Moskus, 491 F. Supp. 3d 359, 361, 364-66 (C.D. Ill. 2020).
The Sedona Conference explained that the three standards defining “possession, custody, or control” are the “legal right standard,” the “legal right plus notification standard,” and the “practical ability standard.” 17 Sedona Conf. J. at 483. To complicate the matter, the Sedona publication states “that federal courts in some circuits have applied more than one standard.” Id. at 492; accord Robinson, 491 F. Supp. 3d at 361-62 (“clarity of this test began to blur” and later “became murkier….”).
Sedona argues for the “legal right standard.” 17 Sedona Conf. J. at 537. Notably, in connection with that proposed standard, Sedona adds a notification requirement:
[A]n employer may become aware that a custodian used a dual-use/BYOD personal device, personal web-mail, or a personal social media account to communicate about the facts underlying the lawsuit and those sources may contain relevant information. The employer, however, does not have Rule 34 “control” as espoused by this Commentary. In accordance with the Legal Right Plus Notification Standard, a responding party claiming it does not own or “control” relevant Documents and ESI is required to timely notify the requesting party, which allows the requesting party the opportunity to obtain those Documents and ESI from the third party. [emphasis added].
17 Sedona Conf. J. at 572, citing Charter Oak Fire Insurance Co. v. Marlow Liquors, 908 F. Supp. 2d 673, 679 (D. Md. 2012) (citing Silvestri v. Gen. Motors Corp., 271 F.3d 583, 591 (4th Cir. 2001)). Sedona Principle 5 provides for such notice by the responding party and adds: “If the responding party so notifies the requesting party, absent extraordinary circumstances, the responding party should not be sanctioned or otherwise held liable for the third party’s failure to preserve the Documents or ESI.”
I agree with the idea that, regardless of the standard, if a party is aware of the fact that potentially responsive information is within the scope of the duty to preserve, but outside of its possession, custody, or control, it has a duty to inform its opponent. See, e.g., Is There a Duty to “’Fess Up?” (Aug. 15, 2022).
The District of Maryland and some other courts follow the “practical ability” test. See The “Practical Ability” Standard for “Control” in Maryland (Dec. 11, 2020); see, e.g., Goodman v. Praxair Servs., Inc., 632 F. Supp. 2d 494, 516 n. 11 (D. Md. 2009); In re Application of CBRE Glob. Invs. (NL) B.V., 2021 WL 2894721, at *3, 5 (S.D.N.Y. July 9, 2021).
For my 2¢, that is the preferable test. See Signify Holding B.V. v. TP-Link Rsch. Am. Corp., 2022 WL 3704001, at *2 (S.D.N.Y. Aug. 26, 2022)(citing part of Sedona’s criticism of the practical ability test, and writing “[t]he Court is not sure that the criticism is fully warranted.”).
However, it is clear that the choice of the test may, and often does, impact the outcome of a discovery dispute. The “practical-ability-to-obtain-documents test” is “looser” than the legal right test. Driscoll’s, Inc. v. California Berry Cultivars, LLC, 2022 WL 3348019, at *3 (E.D. Cal. Aug. 12, 2022); Equal Employment Opportunity Comm’n. v. MVM, Inc., 2020 WL 6482193 (D. Md. Nov. 2, 2020)(“MVM was a contractor for SSA. It did not have the ‘legal right’ to demand that SSA provide it with video or card reader evidence that SSA owned. However, it had the ‘practical ability’ to obtain the evidence as demonstrated by the fact that SSA cooperated with requests from MVM.”); see, e.g., Robinson v. Moskus, 491 F. Supp. 3d 359, 361, 364-66 (C.D. Ill. 2020)(“Accordingly, although the Defendants here have the practical ability to obtain the requested documents from the IDOC, the record fails to establish they have the legal right to obtain them from the IDOC. Consequently, the requested documents are not in the possession, custody, or control of the Defendants, and they cannot be compelled to produce the documents pursuant to Rule 34(a)(1)…. The Court acknowledges that the consequences of this Order may have a significant impact on the manner in which litigation against IDOC employees must be conducted.” [emphasis added].).
The debate over the varying standards that is reflected in the various judicial decisions and The Sedona Conference Commentary shows that there are strengths and weaknesses in each of the formulations. If any one was perfect, the choice would be easy. It isn’t. I don’t have the answer to that question.
But – given the fact that, as the Sedona Conference pointed out, “differing approaches to what constitutes possession, custody, or control under Rules 34 or 45… has led to a lack of clarity for lawyers and litigants that must manage discovery or advise clients regarding the production of Documents and ESI in multiple jurisdictions,” a uniform standard is preferable to uncertainty.
Fed.R.Civ.P. 34 requires that a party produce responsive and proportionate information “in the responding party’s possession, custody, or control….” Rule 1 states that the Rules “should be construed, administered, and employed by the court and the parties to secure the just, speedy, and inexpensive determination of every action and proceeding.”
Uniformity has always been a goal of the rules: “One of the original purposes of the enactment of the Federal Rules of Civil Procedure was to develop a relatively uniform practice of law throughout the country.” Jean M. Cary, “Rambo Depositions Revisited: Controlling Attorney-Client Consultations During Depositions,” 19 Geo. J. Legal Ethics 367, 402 (2006); Hagy v. Allen, 153 F. Supp. 302, 306 (E.D. Ky. 1957); Karno-Smith Co. v. Sch. Dist. of City of Scranton, Lackawanna Cnty., 44 F. Supp. 860, 862 (M.D. Pa. 1942). “The legislative history of what eventually became the Federal Rules of Civil Procedure begins at about the time the Supreme Court was overhauling the equity rules in 1912. The American Bar Association at its session in 1911, on the motion of Thomas Shelton of Virginia, adopted a resolution favoring a uniform system of federal procedure under rules prepared by the Supreme Court for use in the federal courts….” Wright & Miller, “The Struggle for Procedural Reform,” 4 Fed. Prac. & Proc. Civ. § 1003 (4th ed.)(emphasis added); United States v. Bogle, 689 F. Supp. 1121, 1144 (S.D. Fla. 1988).
“Possession, custody, or control” is an issue presented in most or all discovery responses. As suggested by The Sedona Conference, the application of varying formulations of the bedrock “possession, custody, or control” concept is often contrary to the goals of uniformity and the just, speedy, and inexpensive resolution of each action.
 There have also been differences over the application of the “practical ability” test. One court recently wrote: “Some courts outside of the Second Circuit applying the ‘practical ability’ test have applied Rule 26 proportionality concepts when determining whether to require a party to seek the information through a Rule 45 subpoena rather than through a Rule 34 request. See, e.g., Lynn v. Monarch Recovery Mgmt, Inc., 285 F.R.D. 350, 361 (D. Md. 2012). This Court, however, is skeptical whether this approach is correct. In this Court’s view, proportionality considerations come into play once ‘possession, custody or control’ has been established, because even if a party has possession, custody or control of certain information, proportionality principals may weigh against production of such information.” Signify Holding B.V. v. TP-Link Rsch. Am. Corp., 2022 WL 3704001, at *2 n 2 (S.D.N.Y. Aug. 26, 2022).
 The Hormel court “shares the Sedona Conference’s view that ‘organizations should not be compelled to terminate or threaten employees who refuse to turn over their devices for preservation or collection.’” There is a countervailing concern that an organization not be permitted to evade its discovery obligations by authorizing employees to use their own personal devices for corporate business and then assert that it cannot control them or require them to produce that business information.
 The civil rules “prescribe general rules of practice and procedure….” 28 U.S.C. §2072(A).
 Bogle was “effectively overruled” on other grounds by U.S. v. Mistretta, 488 U.S. 361 (1989).