International E-Discovery: How The 11th Circuit's Interpretation of 'Possession, Custody, or Control' May Impact Multinational Corporations.

Author:Silva, Effie D.

In decoding the bounds of e-discovery under the Federal Rules of Civil Procedure, courts around the country have employed a variety of constructions; in particular, three central theories of interpretation have been applied to the "possession, custody, or control" language governing initial disclosure of electronically stored information. Depending on where you litigate, your discovery protocols may be subject to either the "legal right standard," the "legal right plus notification standard," and/or the "practical ability standard." This article attempts to make sense of the distinctions between the three and, more importantly, sound the alarm on the potentially deleterious consequences of widespread adoption of the practical ability standard, which has established a firm footing here in the 11th Circuit.

Among the challenges inherent in the global marketplace is the cross-border disclosure and transfer of confidential, personal, privileged, or otherwise protected information sought for disclosure or discovery in U.S. litigation. Particularly in international hubs such as South Florida, which in many ways serves as the gateway between North and South America, the rapid proliferation of electronically stored information (ESI) and the increasing interdependence among multinational companies arising from a global marketplace presents novel and unique legal challenges that previously did not exist in the 11th Circuit.

The Federal Rules of Civil Procedure require the initial disclosure of "electronically stored information ... that the disclosing party has in its possession, custody, or control[.]" (1) A party may request, under Rule 34, within the permissive bounds of Rule 26(b), the production of electronically stored information "in the responding party's possession, custody, or control[.]" (2) Rule 45 provides that in a subpoena, a serving party shall require the responding party to produce all of the "electronically stored information ... in that person's possession, custody, or control[.]" (3)

Importantly, "[p]ossession, custody, and control are not the same thing. A party may be in control of information that it does not own or physically possess." (4) Thus, a great deal of confusion involves the "control." While physical possession or legal ownership can be established with relative ease (i.e., it can often be regarded as an on-off, black-white inquiry), whether or not an entity has "control" over certain documents within the meaning of the rules, involves further scrutiny. Although the rules provide examples of what constitutes electronically stored information --"including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations" (5)--the rules are silent on the definition of "possession, custody, or control." In other words, that four-word phrase with such potentially significant implications goes undefined in the rules by which it has been employed.

Thus, it has been left up to courts to interpret the reach of the rules, and their various interpretations of the imprecise "possession, custody, or control" have often been in conflict. (6) The three general categories of interpretation with respect to what "possession, custody, or control" are the legal right standard, the legal right plus notification standard, and the practical ability standard. (7) The Sedona Conference, a legal think tank that has emerged as a leader in the development of e-discovery policy, has pushed back against adoption of the practical ability standard in particular, arguing that the "common-law test has led to inequitable situations in which courts have held that a party has Rule 34 'control' over documents and ESI even though the party did not have the actual ability to obtain the documents and ESI." (8)

Attorneys advising and representing clients in the 11th Circuit--where federal courts have, at various times, applied both the legal right standard and the practical ability standard, though more often and more recently the latter--should be aware of how nuances in interpretation may determine their clients' obligations and potential risks of noncompliance with shifting standards.

Back in 1984, the 11th Circuit applied the legal right standard in Searock v. Stripling, 736 F.2d 650, 653 (11th Cir. 1984), that, given that "control is the test with regard to the production of documents[,]" "[c]ontrol is defined not only as possession, but as the legal right to obtain the documents requested upon demand." (9) But in more recent years, and notably after the 2006 amendment to Rule 34 providing for reference to "electronically stored information," the trend has seemingly been toward the adoption of the practical ability standard.

In 2010, a judge in the Middle District of Florida indicated the shift in interpretation when he declared in Soliday v. 7-Eleven, Inc., No. 2:09-cv-807-FtM-29SPC, 2010 WL 4788041, at *2 (M.D. Fla. Nov. 17, 2010), that "control" has been "defined as a 'party's legal right, authority, or practical ability to obtain the materials...

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