Originally from Obtaining Evidence for Use in International Tribunals under § 1782, Second Edition

PREVIEW

When examining discovery under 28 U.S.C. § 1782, the statute itself directs that documents should be produced “in accordance with the Federal Rules of Civil procedure.”   Most relevant to this topic is FRCP 26, which requires a party to produce documents that are within its “possession, custody, or control,” while the other relevant Federal Rules also help to clarify the application of this general principle throughout different steps of the discovery process.   Access to discovery becomes more complicated, however, when assessing whether a party has control over documents that are in the physical possession of a third party.  In such instances, courts must examine the relationship between the party and the non-party to determine if it would be proper to infer that the party has control over the data.  Courts are divided as to how exactly to determine when “control” exists, with some favoring a narrow “Legal Right” standard, and others adopting a more expansive “Practical Ability” standard.

According to the U.S. Court of Appeals for the Ninth Circuit, a party has control over documents possessed by a non-party only if “the party has the legal right to obtain them.”   As noted by Judge Posner of the Seventh Circuit court in Chevariat v. William Pipe Line Co., “…the fact that a party could obtain a document if it tried…does not mean that the document is in its possession, custody, or control.”   This directly distinguishes the Legal Right standard from the Practical Ability by limiting control only to instances where the party has a direct legal right to access the information.  In addition to the Seventh and Ninth Circuits, courts in the Third, Fifth,  Sixth,  Eighth,  Tenth,  and Eleventh  Circuits have all followed this standard.

Courts have identified a legal right to access information in multiple instances.  One straightforward example is when a contract provides a party with such rights.   Such contractual rights have been found to cover instances of server log data stored on non-party servers and text messages stored with a company’s third-party service provider.   Courts also have identified a legal right for a company to access information held by a non-party in instances where a principal-agent relationship can be established.