“Possession, Custody, or Control” of State Agency Documents by State Attorneys General?

In an important decision, the Ninth Circuit applied California law and held that “the People,” i.e.,  State Attorneys General, are generally not deemed to have possession, custody, or control of State agency documents, when they are prosecuting an enforcement action.  In Re: People of the State of California v. U.S. District Court for the Northern District of California, Oakland, 2025 WL 2427608 (9^th Cir. Aug. 22, 2025)(unpublished).

THE RULES GOVERNING UNPUBLISHED DECISIONS

The People of the State of California opinion states: “This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.”

However, Fed.R.App.P. 32.1 states that “[a] court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been: (i) designated as ‘unpublished,’ ‘not for publication,’ ‘non-precedential,’ ‘not precedent,’ or the like; and (ii) issued on or after January 1, 2007.”

The 2006 Advisory Committee Note states that the Rule 32.1 “says nothing about what effect a court must give to one of its unpublished opinions….”  The Committee Note adds: “Under Rule 32.1(a), a court of appeals may not prohibit a party from citing an unpublished opinion of a federal court for its persuasive value or for any other reason.” [emphasis added].

By way of comparison, Maryland State courts have taken a different approach to unreported decisions.  Elimination of Judicial Disappearing Ink in Maryland (May 6, 2023); Maryland’s New and Improved Unreported Opinion Rule Does Not Go Far Enough (Jun. 1, 2024).

FACTS AND PROCEDURAL POSTURE

While the People of the State of California mandamus petition named the District Court as a respondent,[1] the litigation at issue involves Meta Platforms, Inc., and others as the real parties in interest.  The underlying claims were summarized by the court:

A coalition of State Attorneys General (the State AGs) have brought an enforcement action against Meta Platforms, Inc., the parent company of Facebook, under various state consumer-protection statutes and the Children’s Online Privacy Protection Act of 1998, 15 U.S.C. § 6501 et seq. The State AGs allege that Meta designed intentionally addictive products that harm teenagers’ mental health.

Id. at *1.

“On February 23, 2024, Meta sent the State Attorneys General a list of state agencies ‘that may possess information relevant to the claims or defenses.’ …  Meta served requests for production of documents under Rule 34 on the State Attorneys General on February 27, 2024.”  In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618, at *1 (N.D. Cal. Sep. 6, 2024).

Then, in discovery, Meta sought nonparty State agency documents using a request for production of documents pursuant to Fed.R.Civ.P. 34, “arguing that the documents are within the control of the State AGs.”  The State AGs objected, asserting that they lack “legal control over independent state agency documents.” 2025 WL 2427608, at *1. The U.S. Magistrate Judge rejected those assertions and ordered that the State AGs produce the requested documents. Id. The District Judge agreed in large part, but overruled the Magistrate Judge in part.

In the words of the Magistrate Judge:

Each State Plaintiff is represented by attorneys from the office of their respective State Attorney General. After Meta served requests for production of documents under Federal Rule of Civil Procedure 34 on the State Attorneys General, the Parties disputed whether or not certain identified state agencies should be subject to party discovery, and thus, whether the States Attorneys General should not only collect and produce documents from the Attorney General’s office but also from relevant custodians within the identified state agencies…. [The State AGs] object to treating their respective state agencies as being subject to party discovery and insist that all of these agencies are third parties from whom Meta should seek documents by subpoenas under Federal Rule of Civil Procedure 45.

In re Soc. Media Adolescent Addiction, 2024 WL 4125618, at *1 (emphasis added).

The State of California and other State AGs petitioned for a writ of mandamus ordering the district court to grant their objections.  2025 WL 2427608, at *1. The Ninth Circuit granted that Petition as to California and several other states.  The mandamus petition was denied as to one State and dismissed as moot to others.

THE NINTH CIRCUIT’S HOLDINGS

The Ninth Circuit provided a non-exhaustive list of five factors to consider on a mandamus petition, and added that the lack of “clear error” “will always defeat a petition for mandamus….” 2025 WL 2427608, at *1 (citation omitted). Conversely, clear error could support mandamus.

The Ninth Circuit agreed with the State AGs “that the discovery orders were clearly erroneous because they failed to require a showing of the existence of an attorney-client relationship between the Attorneys General and nonparty state agencies.”  Id. at *2.  The Ninth Circuit stated that the district court orders “erroneously inferred the future existence of such a relationship….”  Id.

Two important principles were stated:

• “Without an affirmative showing that an attorney-client relationship exists [between an AG and an agency], discovery of nonparty state agency documents should be conducted under Rule 45.” Id. at *2 (emphasis added).
• “Insofar as the parties litigated this case at the extremes, we reject both the view that a state attorney general never has control over the documents of a nonparty state agency and the view that a state attorney general always has control over the documents of a nonparty state agency.” Id. at *2 n. 3 (emphasis in original).

In short, “control” was a question of fact and here (with one exception) Meta did not provide a sufficient factual predicate to show control by the State AGs over the State agencies.

Another important holding was that, even though the Ninth Circuit was considering objections to discovery under the Federal Rules of Civil Procedure, “we must examine state law to determine whether the attorney general of a state controls the documents of nonparty state agencies.”  Id. at *2 (emphasis added).  Applying that principle, the Ninth Circuit found “clear error” in the district court failing to give People ex rel. Lockyer v. Superior Court, 19 Cal. Rptr. 3d 324 (Cal. Ct. App. 2004), “controlling weight.” Id.  Simply stated, under Lockyer, when the People prosecute an enforcement action, they do not have possession, custody, or control over documents of any state agency.  Id.[2]

In addition to “clear error,” the Ninth Circuit held that the State AGs satisfied the other requisites of mandamus.  It stated that high-level government officials need not incur sanctions, such as contempt, in order to seek relief.  And, it stated that mandamus is appropriate to address important, novel discovery and procedural issues. Id. at *2.  Further, while discovery costs do not generally support mandamus, here California “has represented that complying with the discovery orders has required the expenditure of millions of dollars in public funds and ‘strained’ the ability of California state agencies ‘to perform essential public functions.’”  Id.

The Ninth Circuit held that mandamus was proper for California and the Attorneys General of Arizona, Colorado, Connecticut, Hawai’i, Illinois, Indiana, Kentucky, Maine, Maryland, Minnesota, New Jersey, New York (at least up to the date of new legislation), North Carolina, Ohio, Oregon, South Dakota, Virginia, Washington, and West Virginia.  In short, they lacked “control” over State agencies.

However, in keeping with its focus on State law, the Ninth Circuit wrote:

We deny mandamus relief to the Pennsylvania AG because Pennsylvania law explicitly grants his office control over the documents of nonparty state agencies. See 71 Pa. Stat. and Cons. Stat. § 732-208 (West 2025) (“The Office of Attorney General shall have the right to access at all times to the books and papers of any Commonwealth agency necessary to carry out his duties under this act.”). Therefore, the Pennsylvania AG cannot show clear error in the discovery orders.

Id. at *3.  Finally, “because the district judge already granted these states relief from the magistrate judge’s order,” the Petitions of Delaware, Kansas, Louisiana, Nebraska, Rhode Island, South Carolina, and Wisconsin were moot. Id.

VARIOUS TESTS FOR “POSSESSION, CUSTODY, OR CONTROL”

I looked at one of several earlier phases of this dispute in Possession, Custody, or Control of Responsive Information by States Suing Meta (Sep. 12, 2024), citing In Re: Social Media Adolescent Addiction/Personal Injury Products Liability Litigation, 2024 WL 4125618 (N.D. Cal. 2024).  There, the court applied the “legal control” test of possession, custody, or control.[3]

Meta had argued that Rule 34 requests were the proper vehicle because it would otherwise have to serve 200 subpoenas under Rule 45. In short, it argued that the State AGs had control over State agencies.

There are three different standards for determining the meaning of “control.”  See Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”? (Sept. 7, 2022)(citations omitted).  They are: 1) the “legal right” to control standard; 2) the “legal right plus notification” standard; and, 3) the “practical ability” to control standard.  Id.; The Sedona Conference, “Commentary on Rule 34 and Rule 45 ‘Possession, Custody, or Control,’” 17 Sedona Conf. J. 467, 482-92 (2016).

To complicate the matter, the Sedona publication states “that federal courts in some circuits have applied more than one standard.” Id. at 492. The choice of the test may, and often does, impact the outcome of a discovery dispute.  Id.  That issue – which test applies, unlike the “control” issue – is governed by federal law.

In Social Media Adolescent Addiction, binding federal authority compelled use of the “legal right” test.  Therefore, “control” existed where a litigant had the legal right to obtain documents on demand.  And, the Ninth Circuit applied State law to the second part of that analysis, i.e., what is “control”?

THE DISTRICT COURT’S DECISIONS

Many of the “control” factors considered by the district court, and discussed at length in Possession, Custody, or Control of Responsive Information by States Suing Meta, were not discussed in the Ninth Circuit’s opinion.  The Magistrate Judge’s opinion, 2024 WL 4125618, is 146 pages on Westlaw and cannot be summarized here.

Subsequently, the District Judge issued a 38-page opinion.  2025 WL 1179370 (N.D. Cal. Mar. 6, 2025)(describing the Magistrate Judge’s opinion as 248 pages).  With the exception of nine States, the District Judge found “the [Magistrate Judge’s] Order correct, well-reasoned, and thorough, and rejects most objections.”

The State AGs’ objections in the District Court related to the Magistrate Judge’s holding on “legal control.”  The State AGs made a “dual-executive” argument; however, the District Judge wrote: “Taking that as true—and the Court sees nothing objectionable in that characterization—the States miss the point. An entity can still have legal control over the documents of an entirely independent entity….”  Id. at *3.  It  wrote: “If the mere fact that two separately constituted or formed entities were enough to defeat control, then there would almost never be a finding of control.”  Id. at *4.

The District Court held that the “dual executive” theory neither permits nor defeats control. “The question is whether there is some mechanism that confers on a given AG the legal right to obtain documents of a state agency on demand….” Id.

Further, the District Court noted that, in 32 of the cases, the State itself was a party.  Both the District Judge and Magistrate Judge pointed to, among other things, the fact that the State AGs had sent litigation hold notices to the agencies, suggesting that was an indicator of control. Id. at *8.

The District Judge wrote: “It is particularly dilatory for these agencies to sit back and rely on their AG to effectively act as their counsel by advocating on their behalf over months of litigation, now to disclaim any such association with their AG.” Id.  The lower court also wrote: “Ultimately, the state agencies protesting discovery miss the point: whether by party or third-party discovery, if a document is relevant, it will be produced. In federal court, federal law dictates the process by which that occurs.”  Id. In summary:

Many states provide that the AG is charged to supervise the general legal affairs of the state and that state agencies may not obtain separate counsel without “the written consent of the Attorney General.” See, e.g., Cal. Gov’t Code § 11040(c). In other words, the AG has the effective authority to mandate that it represent the agency in connection with this litigation….  The [Magistrate Judge’s] Order identified that, as a matter of federal law, this mechanism provides an AG with the authority to control this litigation on behalf of state agencies and by extension have a right to access relevant documents in their possession for purposes of discovery. Under this deferential standard of review, the Court cannot say that such determination is contrary to law or clearly erroneous.

Id. at *9.  After an analysis of each State’s laws, the District Judge found clear error as to seven or, perhaps after supplementation, nine states.  Id. at *31. The District Court wrote:  “In federal court, federal law governs the scope of discovery. The States cannot employ the benefits of an MDL without the attendant burdens.” Id. at *31.

It is from that decision that California and others petitioned for mandamus.

WHILE “CONTROL” APPLIES TO DISCOVERY,

IT ALSO APPLIES TO PRESERVATION

The definition of “control” may be important in another context.  In addition to practical consequences in discovery – such as here, the need to serve perhaps hundreds of subpoenas – the definition of “control” may impact the duty to preserve.

Sedona Principle 5 provides for notice of lack of legal control 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.” [emphasis added]. Applying that  principle, if California notified the Defendants that it does not control State agency documents for discovery, the California plaintiff cannot be sanctioned if a State agency destroyed relevant, discoverable information after the plaintiff’s duty to preserve was triggered.[4]

In the prior blog, I wrote that “for my 2¢,” the “practical ability” to control test is preferable to the “legal control” test.  Let me give a simple example.  A and B are married. Each has their own email account. If A were to ask B to provide a copy of an email, and B as a loving spouse would do it, A has “practical ability” and therefore control.

But, as a spouse, A does not have legal control over B or B’s email account, and, under that test, an opponent must subpoena B. Further, if A notifies opposing counsel of the lack of control, and if Sedona Principle 5 governs, prior to service of a subpoena on B, B can destroy the email (after A’s duty to preserve is triggered) and neither A nor B is subject to sanction.

Fed.R.Civ.P.1 calls for the just, speedy, and inexpensive resolution of every action.  I suggest that and other hypotheticals should be troubling to the “legal control” proponents.

However, in my prior blog, I 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.”  There needs to be a uniform, national standard. Isn’t It Time for a Uniform National Standard on “Possession, Custody, or Control”?

THANK YOU

I would like to thank Ethan Ackerman, Esq., of Morgan,  Lewis & Bockius LLP, for bringing In Re: People of the State of California v. U.S. District Court for the Northern District of California, Oakland, 2025 WL 2427608 (9^th Cir. Aug. 22, 2025), to my attention.

Mr. Ackerman “counsels clients in complex litigation and all levels of governmental investigations, with a focus on issues of electronic discovery…. With an emphasis on proactive information governance, Ethan tailors plans for effectively handling and minimizing data, and offers prelitigation counseling regarding legal hold and document preservation, information management, and records retention policies.”

Of course, only I am responsible for the content of this blog.  The opinions and positions expressed on this site are mine alone.

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[1] In a different context, it was improper to name the Court and Judges as defendants.  Lawsuit Against Federal Judges Dismissed – “[T]hese are not normal times.” (Aug. 26, 2025).

[2] Lockyer was apparently decided with the State as an enforcing plaintiff.  In Meta, the States were plaintiffs and there was no need to analyze “possession, custody, or control” where the State is a defendant.  Assume, for example, that a State department of transportation operates a subordinate transit police agency which is sued for excessive force in an arrest. Assume that the State AG represents the police agency and the non-party transportation department, which has relevant, discoverable documents.  In a defensive action, does the State AG have possession, custody, or control over the department of transportation documents?

[3] For blogs discussing another prior decision in Social Media Adolescent Addiction, see also   4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 4, 2024); An Epilog:  4 Things You Never Wanted to Hear + 8 Lessons & a Dispute Over Revealing Recipients of Litigation Hold Notices, All in One Case (May 10, 2024).  I concluded by writing: “This is most certainly not the last chapter in In Re: Social Media Adolescent Addiction.”

[4] In Silvestri v. GMC, 271 F.3d 583 (4th Cir.2001); Zorzit v. Comptroller, 225 Md. App. 158, 180, 123 A.3d 627, 640 (2015), the courts stated that, when a party cannot preserve potentially responsive information, it has a duty to notify the opponent.