March 05, 2020 Civil Procedure

Navigating "Control" in a Matrix of ESI Discovery

Does a party have control (and potential liability for sanctions for loss of) ESI possessed by a third party?

By Brian A. Zemil

My last column discussed whether the recent amendments to Federal Rule of Civil Procedure 37 displaced the federal courts’ inherent authority to impose sanctions for lost electronically stored information (ESI). A related issue is whether a party has control of, and potential liability for sanctions for loss of, ESI possessed by a third party. Rule 37 does not, however, refer to “control”—a term that the rules and advisory notes do not define.

This ambiguity has led courts to bootstrap Rule 34’s control standard onto Rule 37 and use different tests to resolve control-related disputes. The inquiry is fact-specific and the legal standard varies by and even within jurisdictions. To minimize the risk of potentially case-ending sanctions, attorneys should proactively identify potential control-related disputes and tailor their litigation plans to account for the applicable legal standard.

Rule 34 refers to a party’s responsibility to preserve and produce ESI in its “possession, custody, or control.” Discoverable ESI resides in many different places, including network servers, websites, and the cloud. The advisory committee acknowledged that, when storing ESI in multiple places, parties face the specter of sanctions if their discoverable ESI is not preserved by nonparties.

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