June 26, 2020 Practice Points

Legal Right or Practical Ability?

Know the different jurisdictions’ approaches to possession, custody, or control.

By Monette Davis

In discovery, the request for production of documents is an essential stage in litigation. Particularly, Rules 26 (required disclosures), 34 (requesting documents), and 45 (subpoenas) of the Federal Rules of Civil Procedure relate to the discovery of documents, electronically stored information (ESI), and tangible things that are in the possession, custody, or control of the responding party. However, the Federal Rules do not define what constitutes possession, custody, or control, leading the judiciary to fill in the gap with what, over the years, have become known as the “legal right” and “practical ability” tests.

Legal Right and Practical Ability Test

The legal-right test is pertinent when a party has a legal right to obtain and produce documents and ESI on demand that is within a party’s possession, custody, or control. However, a party does not have to be in actual possession of such documents to have a legal right to obtain the information. This test is applicable in jurisdictions where a contract allows access to such documents or when there is a principal-agent relationship that provides a legal right to obtain documents. Further, jurisdictions typically place the burden of proof on the party opposing the production of documents and ESI to show that he or she does not have actual possession or the legal right to obtain the requested information.

In contrast, the practical-ability test interprets control as a party having the practical ability to produce such documents to the opposing party, even when that party does not have a legal right to the documents. Such documents are within a party’s control if that party has retained any right or ability to influence the person in whose possession the documents lie. Further, this test is frequently applied in cases involving sister corporations. Some jurisdictions have held that documents are under a party’s control when that party has the practical ability to obtain such documents from a person that is not a party to the action. It has also been held that control means possession, authority, or ability to actually obtain the documents. Moreover, documents not in the possession or custody of a party may still be subject to production if a party has a means to obtain them. However, the obligation to produce such documents will be based on that particular jurisdiction’s law.

The Better Test

Both the legal-right and practical-ability tests have been criticized and given different interpretations in the jurisdictions where they are applied. In particular, application of the practical-ability test has been said to be challenging in practice. And for that and other reasons, the legal-right test has been favored as the better test because of its fairness and consistent application. Even so, there are still limitations under either test on what documents a party may be required to produce; practitioners should be aware of which test applies in their jurisdiction (and how).

Monette Davis is an attorney with Stone Pigman Walther Wittmann L.L.C. in New Orleans, Louisiana.


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