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Do You Have to Produce Relevant Data from a Third-Party Vendor?

Linhares v. Woods Hole, Martha's Vineyard

D. Mass. December 16, 2022


Why This Case Is Important

As more and more organizations store data, the question asked in the alert’s title will continue to arise in cases again and again. In this one, the court ruled that if a party has the practical ability to produce the requested documents, then they must do so.


In this personal injury “slip and fall” case, the plaintiff motioned to compel the defendants to produce documents that were possessed by a third-party.

During e-discovery, the plaintiff wanted to see the history of repairs done to the area in which the slip and fall occurred. The defendants declined to produce all related documents, because they did not possess the documents. However, a third party did.

The plaintiff argued that this defense was inadequate since the requested documents were under the defendant’s “possession, custody, or control” based on FRCP 34(a). The defendants disagreed and believed that the plaintiff should subpoena the third party for the requested documents.


  • Motion to Compel Granted. The court ordered the defendant to produce the requested documents from the third-party vendor. The court ruled that the documents were within the defendant’s “possession, custody, or control.”
  • Concept of Control Extends Broadly. The court justified their ruling based on the fact that a party has control when ”the party has the right, authority or ability to obtain the document upon demand.” Since the defendants were customers of the third-party, they had the ability to obtain the requested documents.
  • “Practical Ability.” The court rejected the defendants’ argument that they had no obligation to produce documents from a third party based on case law stating, “If a party has access and the practical ability to possess documents not available to the party seeking them, production may be required.”

Legal Analysis

By, Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper

There are two major tests for possession, custody, or control. The "legal right" test is used in the Ninth Circuit, and the “practical ability” test is used in the Second Circuit. Other courts where the Circuit has not set a standard may use one or both. For reference, see The Sedona Conference Commentary on Rule 34 and Rule 45 “Possession, Custody, or Control.”

The court here found that while the defendant steamship company did not have the legal right to get documents from its vendor, it had the practical ability as a customer to do so. The court cited my opinion in the NTL case to support that result, so obviously I agree with that. You need to know which test the court you are in front of will apply.

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