November 30, 2020 Practice Points

Possession, Custody, or Control: Federal Court’s Persuasive Authority Can Assist State Court’s Decision

Know how state courts can rely on federal law.

By Monette Davis

State courts are bound only by their own precedents or those of the Supreme Court of the United States. Even so, a federal court decision, law, or statute can provide persuasive authority to state courts when they have an obligation to interpret similar provisions under state laws. One example is the meaning of “possession, custody, or control”—a term that provides the scope of civil discovery but, nonetheless, remains undefined in some states and state courts.

As discussed in a previous practice point, Legal Right or Practical Ability?, the Federal Rules of Civil Procedure have not yet defined the meaning of possession, custody, or control. Federal courts tend to use one of two distinct tests (legal-right and practical-ability) when defining possession, custody, or control as it relates to the request for production of documents during discovery. For federal courts applying the legal-right test, electronically stored information (ESI) and documents are within a party’s possession, custody, or control when a party has a legal right to obtain and produce them on demand. In contrast, for federal courts applying the practical-ability test, ESI and documents are within a party’s possession, custody, or control when a party has the practical ability to produce them to the opposing party, even when that party does not have a legal right to them.

In a recent Nevada Supreme Court decision, State v. Eighth Judicial District Court of Nevada, the court considered whether the Nevada Department of Taxation had to collect, duplicate, and produce ESI from workers’ personal cell phones in a dispute over the award of recreational-marijuana licenses. The department argued that it had no duty to do so because it lacked possession, custody, or control pursuant to Nevada Rule of Civil Procedure (NRCP) 16.1. Because the court had not yet defined possession, custody, or control within the meaning of the NRCP, and the provisions were similar to the federal rules, it relied on the federal authority for direction. The court reviewed both approaches from the federal courts before holding that a party has possession, custody, or control over documents, ESI, or tangible things if the party has the legal right to obtain the material. Under that test, the court concluded that the personal cell phones fell outside of the department’s possession, custody, or control.

The Nevada Supreme Court’s reliance on federal authority for interpreting state law on “possession, custody, or control” is just one example of how the different court systems influence each other. Even if not binding, federal authority can be influential as it relates to state-court decisions, making it an important source to consult on legal issues where there is little or no state authority to guide the practitioner.

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


Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).