I thought members of these lists might be interested in this announcement
from the Sedona Conference.
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From: The Sedona Conference <[log in to unmask]>
Date: Wed, Apr 15, 2015 at 10:32 AM
Subject: Sedona Commentary on Possession, Custody, or Control Posted and
Open for Public Comment Through June 15
To: Mark Conrad <[log in to unmask]>
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The Sedona Conference Commentary on
*Rule 34 and Rule 45 “Possession, Custody, or Control”*
Released for Public Comment Now Through June 15, 2015
Working Group 1 of The Sedona Conference, the Working Group
responsible for *The
Sedona Principles* and other leading commentaries on the preservation,
management, and production of ESI in civil litigation, has released for
public comment a thorough and comprehensive review of the “possession,
custody, or control” doctrine, proposing five practical, uniform, and
defensible principles to guide parties and courts regarding when a
responding party should be deemed to have “possession, custody, or control”
of documents and all forms of electronically stored information.
[image: commentary]
The *Commentary* recommends that courts should interpret and enforce Rule
34 and 45 “possession, custody, or control” obligations in a uniform way
that does not lead to sanctions for unintended and uncontrollable
circumstances. To support that recommendation, the *Commentary* also looks
to well-established legal doctrines upon which to model the contemporary
scope of a party’s duty to identify, preserve, collect, and produce
documents and ESI, such as reliance upon a modified version of the business
judgment rule. The Abstract from the Commentary is set forth below.
You can download the *Commentary on Rule 34 and Rule 45 “Possession,
Custody, or Control”*
without charge here:
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<https://thesedonaconference.org/sites/sedona.civicactions.net/modules/civicrm/extern/url.php?u=1732&qid=1599380>
*Questions and comments on the Commentary are welcome through June 15, 2015
and may be sent to [log in to unmask]
<[log in to unmask]" target="_blank">http:[log in to unmask]>*. The WG1 drafting team will
carefully consider all comments received, and is expected to publish a
“final” version of the Commentary before the end of the year.
A 90-minute webinar featuring a panel selected from the Commentary drafting
team will be scheduled for later this spring, and will be announced by
email and on The Sedona Conference web page.
------------------------------
*Abstract*
Rule 26(a) of the Federal Rules of Civil Procedure allows for the discovery
of “documents, electronically stored information, and tangible things” in
the responding party’s “possession, custody, or control.” Similarly, Rule
34(a) and Rule 45(a) obligate a party responding to a document request or
subpoena to produce “documents, electronically stored information, and
tangible things” in that party’s possession, custody, or control. Yet, the
Rules are silent on what the phrase “possession, custody or control” means.
Therefore, parties must look to case law for a definition. Unfortunately,
the case law across circuits (and often within circuits themselves) is
unclear and, at times, inconsistent as to what is meant by “possession,
custody or control,” resulting in a lack of reliable legal—and
practical—guidance. The inconsistent interpretation and application of
Rules 34 and 45 in this context are especially problematic because parties
remain absolutely responsible for preserving and producing information
within their “possession, custody or control” and face material
consequences, including sanctions, for their failure to do so.
Furthermore, in today’s digital world, the determination of whether and
when information should be considered to be in a responding party’s
“possession, custody, or control” has become more complex. New technologies
and organizational initiatives have further blurred the legal and
operational lines of who actually “controls” data for purposes of
preservation and production, and have multiplied the practical problems
associated with preserving and producing data that a party does not
directly control. The proliferation, use and transfer of vast quantities of
digital information, deciding how and where to store that information, and
increasingly complex business relationships aimed at addressing the
creation and storage of information, have all spawned multiple issues that
have profoundly affected the issue of “possession, custody or control”
under the discovery rules.
This *Commentary* is intended to provide practical, uniform and defensible
guidelines regarding when a responding party should be deemed to have
“possession, custody, or control” of documents and all forms of
electronically stored information (hereafter, collectively referred to as
“Documents and ESI”) subject to Rule 34 and Rule 45 requests for
production. A secondary, corollary purpose of this Commentary is to
advocate abolishing use of the common-law “practical ability test” for
purposes of determining Rule 34 and Rule 45 “control” of Documents and ESI.
Simply stated, this common-law test has led to inequitable situations in
which courts have held that a party has Rule 34 “control” of Documents and
ESI even though the party did not have the *actual ability* to obtain the
Documents and ESI. Therefore, this Commentary recommends that courts should
interpret and enforce Rule 34 “possession, custody or control” obligations
in ways that do not lead to sanctions for unintended and uncontrollable
circumstances. To support that recommendation, this Commentary also looks
to several well-established legal doctrines upon which to model the
contemporary scope of a party’s duty to identify, preserve and collect
Documents and ESI, such as reliance upon a modified version of the business
judgment rule.
------------------------------
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------------------------------
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