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The Vexing Question of "Possession, Custody, Control" in Today's Digital Age

Created on October 18, 2019


Director of Marketing at Exterro





Pentel v. Shepard (D. Minn. Aug. 8, 2019) 
re-enforces that in today’s digital world, the question of whether a party has possession, custody or control over information requested to be produced is a vexing one. In this case, a wireless service provider with records of old text messages was in the defendants’ control.

Overview:

In this business conspiracy case, the plaintiff motioned the court to compel the defendant to produce allegedly relevant text messages. The defendant argued that he didn’t need to produce the text messages because he no longer had “possession, custody or control” over the texts based on these reasons: 1. He wasn’t using the same wireless service provider as he did when the alleged texts were sent 2. He no longer had the phone from which the text messages were sent from When the plaintiff subpoenaed the defendant’s former wireless service provider, the defendant would not authorize the provider to release the requested texts.

Ruling:

    • Motion to Compel Granted. The court ruled that the plaintiff had control over the requested texts because “by either granting or withholding [his] consent, [he] did not (and does not) object to Plaintiffs subpoenaing his service providers for the records."
    • Texts are Relevant. The judge deemed that the texts were relevant based on the fact that a log of text messages (which included sender, receiver and date/time sent/received) took place around the time of the dispute at issue, without dispute from the defendants.
    • Next Steps. The defendant was ordered by the court to do one of two things: (1) execute the release of his records from the service provider, or (2) obtain the requested text messages himself and produce them to the plaintiffs.
Hon. Andrew Peck, Sr. Counsel

Expert Opinion from Hon. Andrew Peck, Sr. Counsel, DLA Piper

There is a split in authority as to whether the test for “possession, custody, or control” (PCC) is the legal right test or the practical ability test. In some circuits different judges use either standard. See Sedona Conference Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control,” 17 Sedona Conf J. 467 (2016). The Judge here chose the practical ability test. But I believe this was all much ado about nothing, because cell carriers do not retain the content of text messages (as opposed to whether texts were sent and to what phone number) after a short period of time.

Case Law Tip: 

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.