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.
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.
Download the PDF version of Hunters Run Gun Club, LLC v. Baker case law alert here.
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.