More data is stored relating to litigation than ever before. In Mickelson et al v. PGA Tour, Inc. (N.D. Cal. Nov. 17, 2022), the court answers the question on how far the requirement to produce relevant data extends.
In this antitrust case about the PGA suspending golfers who joined a competing tour (LIV), the court reviewed whether nonparty custodians would be required to search and collect requested data for this case.
A few plaintiffs who originally joined the claim against the defendant voluntarily exited the lawsuit, but the defendant still served subpoenas to them. The defendant requested data relevant to the matter that these non-party participants might be in possession of. The subpoena to the non-party players also requested documents from their attorneys, agents and “any other person [taking] action on [their] behalf.”
The nonparty participants objected, arguing that there was no requirement for them to produce relevant data in the possession or control of these agents.
- Production of Relevant Nonparty Data. The court ruled that data in actual possession by non-party players’ agents was within the players’ control under FRCP 34, 45. The court ordered that the non-party players run searches over their agents’ data, but limited the scope to results related to agents’ representation of their employer.
- Possession, Custody, Control. The court noted that this standard applies to third parties and not just the responding party in the case. Within the 9th Circuit, “materials in the possession of an agent are within the ‘control’ of the responding person and must be produced.”
Expert Analysis from Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
There are two main standards to determine control: the Practical Ability test used in the Second Circuit and the Legal Right test used in the Ninth Circuit. (Other courts use one or both tests.) If you hire an agent, you presumably have the legal right to material in the agent's possession (absent proof to the contrary). The result here therefore is not surprising. For a discussion of these standards, see The Sedona Conference Commentary on Rule 34 and Rule 45 "Possession, Custody, or Control" (2016).
Case Law Tip
The lines distinguishing what data might be in a litigant’s “possession and control” can be fine. Check out this case law alert for another perspective on the topic.