RIGHT/AUTHORITY TO EXERCISE CONTROL
Haskins suggests that where a party has a contractual right to obtain documents from a nonparty, it may be deemed to have "control" not only for purposes of production, but also for preservation.12 In view of how expansively courts have interpreted the concept of "control" at least for purposes of the obligation to produce documents the prospect of a broad expansion of litigants' preservation obligations may seem daunting. The question that arises then is how far any such duty might extend. Significantly, any contract that provides for a right of access or that imposes cooperation obligations in the event of litigation may provide the requisite degree of "control" for purposes of Rule 34(a). Such language may be present in agency contracts as well as agreements concerning reorganizations of companies after a bankruptcy, a merger, or when subsidiaries are created or dismantled.13 Employment severance agreements also may contain language that provides such "control."
The legal right or authority to obtain documents upon demand also generally extends to agents, including current or former outside counsel. For example, in MTB Bank v. Federal Armored Express, the court held that documents in the possession of defendant's former outside counsel were in the control of defendant and should have been produced through the course of due diligence. Thus, when Federal Armored found a critical assignment agreement between itself and the bank after summary judgment had been entered, the court did not allow a new trial because, among other reasons, the assignment agreement had been in the files of its agent all along.14 The court regarded this as the equivalent of the document residing in the files of Federal Armored itself. This case illustrates the importance of considering what documents nonparties might have not only for purposes of complying with discovery obligations, but also for purposes of timely obtaining relevant useful evidence.
Litigants are also often considered to have the ability to exercise control over documents in the possession of those who owe them legal duties, such as managing agents, accountants, and physicians.15 Indeed, one court-issued litigation hold included "employees, agents, contractors, carriers, bailees, or other nonparties who possess materials reasonably anticipated to be subject to discovery in this action."16 Moreover, as noted previously, courts will likely consider a parent corporation to have a sufficient degree of ownership and control over a subsidiary to find control.17 Unlike parent and subsidiary corporate relationships, however, whether corporations have control over documents of sister corporations is generally a fact-specific inquiry.18 Courts look at factors such as whether the sister corporation was the alter ego or whether the corporations had acted "as one."19 Corporate relationships thus will not invariably give rise to "control" for Rule 34 purposes, but counsel should inquire into the nature of the relationships to determine whether control might exist.
PRACTICAL ABILITY TO CONTROL
In some cases, a party is considered to have control even absent any legal right or authority to obtain documents in possession of a third party because it has the practical ability to obtain them. For example, in United States v. Kilroy, a defendant charged with wire and mail fraud sought production of materials that had been in his office and were kept by his former employer, Standard Oil Company.20 Although Standard Oil was not a party to the suit, it had been cooperating in the proceedings. As a result, the court required the government to use its "best efforts" to obtain from Standard Oil all documents in its possession taken from the defendant's former office. Although the government had no legal right or authority to the documents, the court seemed to think it had the practical ability to obtain them. As a general matter, courts will be more likely to find practical ability if the third party has already turned over documents and has cooperated in the litigation.21
Control for purposes of Rule 34(a) is an expansive concept.22 As long as a party has the legal right or practical ability to obtain documents, they are considered to be within the party's control. As Haskins shows, having control in this sense may affect not only a party's duty of production, but also its obligation to preserve potentially relevant evidence.23 Implementing an effective litigation hold over documents that a party does not possess obviously may present practical difficulties, and the law in this area continues to develop, but Haskins suggests that, at least in certain circumstances, a party may be required to make reasonable efforts to ensure the preservation of documents in the possession of another.
1. See Mosaid Technologies v. Samsung Electronics, 348 F. Supp. 2d 332 (D.N.J. 2004).
2. See Zubulake v. UBS Warburg, 220 F.R.D. 422 (S.D.N.Y. 2004).
3. Gordon Partners v. Blumenthal (In re NTL Sec. Litig.), 244 F.R.D. 179, 197-198 (S.D.N.Y. 2007).
4. See id.