Kelly Twigger: #CaseoftheWeek Episode 101: Understanding Possession, Custody, and Control in E-Discovery

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Extract from Kelly Twigger’s article “#CaseoftheWeek Episode 101: Understanding Possession, Custody, and Control in E-Discovery”

In episode 101 of the Case of the Week series, Kelly Twigger discusses the Mickelson v. PGA Tour, Inc. decision from November 2022. The case addresses the important issue of possession, custody, and control in ediscovery, specifically in relation to the collection and production of custodial ESI from agents. The Court held that the players’ agents’ materials were the subpoenaed party’s control and must be produced. This highlights the need for legal professionals to understand the law of the jurisdiction they are working in when dealing with agency issues related to possession, custody, or control, and emphasizes the importance of being prepared to make an argument when including parties in requests or subpoenas beyond the immediate person or entity holding the data.


Welcome to episode 101 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys, and I’m very happy to be with you here today. Thank you so much for joining me.

We are fresh off Legalweek 2023 in New York City. It was fantastic to see folks in person and get back to having some conversations about the development of technology and education in ediscovery.

We rolled out our newly launched eDiscovery Academy and had the opportunity to sit down with many of you to talk about how this can fit into your programs, what you’re looking for in education and training for your clients. We loved having those discussions. So, thanks to those of you that sat down with us. Just before Legalweek we released our 2022 Case Law Report detailing the happenings in 2022, together with what to watch for in 2023, some of which we’re already starting to see, and we had discussions about at Legalweek.

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