In the “old” days of civil discovery, documents and files existed in a handful of places—file cabinets, desk drawers, and warehouses filled with bankers boxes. Today, files are almost all entirely electronic (ESI) and exist in multiple environments and applications. Despite the fact that e-discovery attorneys and professionals have been handling ESI since the mid- to late-’90s, the question of whether specific ESI is in the “possession, custody or control” of a party remains unsettled and subject to debate.

Applicable Rules of Federal Civil Procedure

FRCP 26(a)(1)(A)(ii) requires parties to provide a “a copy—or a description by category and location–of all documents, electronically stored information, and tangible things that the disclosing party has in its possession, custody, or control and may use to support its claims or defenses, unless the use would be solely for impeachment.”