eDiscovery Daily Blog

Court Rules Defendant Doesn’t Have Controls of PCs of Former Members, Denies Plaintiff’s Motion to Compel – eDiscovery Case Law

To require a party to produce evidence in discovery, the party must have “possession, custody, or control” of the evidence. In Kickapoo Tribe of Indians of the Kickapoo Reservation in Kansas v. Nemaha Brown Watershed Joint District No. 7, No. 06-CV-2248-CM-DJW (D. Kan. Sept. 23, 2013), the defendant did not have control over the personal computers of its former members, employees, or staff; it did not have the legal right to obtain information from them “on demand.” Therefore, the court rejected the plaintiff’s motion to compel and refused to order the forensic examination of the personal computers of current or former members, employees, or staff.

In this water rights lawsuit, the Tribe filed a motion to compel seeking an order that the defendant district produce documents and permit the forensic examination of its computers. In August 2012, the Tribe issued a request for production of the documents and computers for inspection on two counts it had recently added to its second amended complaint. Although the district responded, the Tribe found the response lacking and claimed that the district had not produced all responsive documents.

The district objected on four grounds. First, and most important to the requests at issue here, the district maintained that it could not “compel former members of the Board of Directors, former staff, or former employees to produce documents that are in their possession but that are not in the possession of the Watershed District itself.” Second, the district averred that the requests duplicated earlier discovery requests on the first four counts of the complaint, where discovery had already closed. Third, the requests were vague and could include privileged documents. Fourth, the district had already produced all documents.

The court agreed that the district did not “have the duty or ability to compel production of documents from persons no longer associated with the District that are not parties to this action.” Under Federal Rule of Civil Procedure 34(a)(1), the district did not have “possession, custody, or control” of the requested documents, which it defined as having “actual possession, custody, or control” or “the legal right to obtain the documents on demand.” The Tribe could not meet its burden to prove that the district had control of the requested documents.

However, the district had not shown that the requests were duplicative or cumulative; if any documents were privileged, the district would have to provide a privilege log. It rejected the Tribe’s claim that documents from a third party supported its argument that the district had not produced all documents.

As for the Tribe’s request for an order requiring the forensic mirror imaging of the computers personally owned by the current and former district board members, employees, and staff, the court sided with the district. The advisory committee notes to Rule 34(a), which permits the inspection of electronically stored information, provide that “the inspection of a responding party’s hard drive is not routine, but might be justified in some circumstances.” Here, the district did not have possession, custody, or control of these computers and thus could not produce them; moreover, the Tribe could not show “beyond speculation” that these computers were used for district business. Finally, the court noted that it had “significant concerns regarding the intrusiveness of the request and the privacy rights of the individuals to be affected,” especially in light of the Tribe’s “broad, non-specific request” for inspection.

So, what do you think?  Should the motion to compel have been granted?   Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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