Extract from Rhys Dipshan’s article “Diverging ‘Possession, Custody or Control’ Tests Impact E-Discovery Outcomes. But Is a Uniform Standard Feasible?”
One of the main goals of the Federal Rules of Civil Procedure (FRCP) was to foster uniform federal court proceedings across the U.S. But in at least one case, it has done the opposite.
Under Rule 34 and Rule 45 , the ambiguity around what opposing parties’ “possession, custody or control” of discoverable data means has caused courts to split on exactly how to determine ownership of requested information during discovery proceedings.
The result has been the creation of several tests that courts across the U.S. rely on—though not in any readily predictable way. Lawyers and e-discovery professionals, therefore, often have to navigate a hodgepodge of court preferences and case law regarding such tests, the choice of which can have a significant impact on discovery disputes and, by extension, case outcomes.
But while this a problem that may seem to have a simple solution, bringing uniformity to the question of “possession, custody or control” is much easier said than done—and for some, a single test may not be the most feasible solution.
“We’ve got to be careful what we wish for, right?” said U.S. District Judge Xavier Rodriguez of the Western District of Texas. “One uniform national standard—it makes sense for us to have an amendment to Rule 34 and have a definition of ‘possession, custody and control’—whichever test it is, we have one test. And now we’re going to have half of the litigants unhappy.”
