Byline: WISCONSIN LAW JOURNAL STAFF
U.S. Court of Appeals for the 7th Circuit
Civil Procedure -- discovery
Where documents were not in the defendant's possession, the plaintiff's request to compel discovery was properly denied.
"Thermal sought discovery of numerous records from ASHRAE committee members. It contends that the documents, though not in ASHRAE's possession, were nonetheless in its control and were therefore discoverable under Federal Rule of Civil Procedure 34(a). Thermal believes that ASHRAE had control over the documents of its agents to compel discovery. We disagree. The district court found that Thermal's evidentiary submissions failed to prove ASHRAE had sufficient control over the documents so as to warrant the motion to compel discovery. See Dexia Credit Local v. Rogan, 231 F.R.D. 538, 542 (N.D. Ill. 2004) (On the issue of control, 'the test is whether the party has a legal right to obtain (the evidence].' (quotation marks omitted)). The court considered Thermal's request to produce the documents but found that Thermal did not show that ASHRAE had adequate control over the...