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.