It all used to be so simple. In the old days, Lawyer A would send a document request to Lawyer B by pony express; Lawyer B would go review her client’s documents, pull some for privilege and non-responsiveness, Bates stamp the documents with a calligraphy pen, load up the mule carts and deliver the document production back to Lawyer A. But that was back in the 1990s when I started practicing. The world is now a vastly more complex place. The explosion of electronically stored information (ESI), data privacy laws, heightened preservation rules, cloud computing, and complex and transnational corporate structures have changed discovery forever. For the better? One hopes. But as Charles Kelly has noted, “the good of the scorpion is not the good of the frog.”
While the world has evolved, some of the legal standards that we use have been in place seemingly forever. These include the phrase “possession, custody or control” (PCC), which has been in use for hundreds of years and has been in the Federal Rules of Civil Procedure since 1937. PCC appears in Rules 34 and 45 to define the scope of the universe of documents and ESI that a party or person may need to preserve, review and produce in a litigation. CPLR §3120 uses the same standard. But how does a party determine that universe, i.e., what does it actually mean these days to have PCC of a document or a few bytes of ESI? It is a critical question because discovery failures can lead to adverse inferences, sanctions and infamy!
