Possession, Custody, or Control – Need for a Uniform National Standard – Part II

Why It Matters

A consistent standard would streamline discovery, reduce litigation costs, and align federal courts with the efficiency goals of Fed.R.Civ.P. 1. Without it, parties face unpredictable obligations and potential sanctions across jurisdictions.

Key Takeaways

• Federal court applied legal control test, rejecting practical ability
• Counsel possession may not equal client control under Rule 34
• Divergent standards cause discovery uncertainty across jurisdictions
• Sedona Conference urges uniform national rule for clarity
• Inconsistent rules hinder Fed.R.Civ.P. 1’s speedy, inexpensive goal

Pulse Analysis

The discovery landscape is fragmented by three competing definitions of "possession, custody, or control." Courts that adopt the legal‑right test, like the Western District of Washington in L.S. v. Bolduan, require a direct, documented link between the client and the documents. By contrast, jurisdictions such as the District of Maryland rely on the practical‑ability standard, which looks at whether a party could realistically obtain the information. This doctrinal split forces litigants to tailor discovery strategies to each forum, increasing legal spend and procedural complexity.

Practically, the divergence creates tactical dilemmas. Defense counsel may hold thousands of pages produced in a parallel state case, yet under a legal‑right analysis those files remain outside the federal defendants' control, limiting a plaintiff's ability to compel production. Conversely, a practical‑ability approach could deem those same files discoverable, exposing parties to sanctions for nondisclosure. The inconsistency hampers the Federal Rules of Civil Procedure’s mandate for "just, speedy, and inexpensive" resolution, as parties must navigate conflicting obligations, file additional subpoenas, and potentially litigate the standard itself.

Industry leaders, including the Sedona Conference, argue that a single national standard would restore predictability and reduce discovery disputes. A uniform rule—whether anchored in legal right, notification, or practical ability—would give counsel clear guidance on client‑attorney document handling, streamline cross‑jurisdictional cases, and lower costs for businesses operating nationwide. As digital data flows across state lines, the pressure to harmonize discovery standards grows, making the call for legislative or rule‑making action increasingly urgent.