Rule 34 and Rule 45: Possession, Custody or Control

By Patricia O. Erdmann, Office of the Indiana Attorney General

Rules 34 and 45 of the Federal Rules of Procedure require the responding party to produce documents, ESI and tangible things within a party's possession, custody or control, yet the Rules are silent on what "possession, custody or control" means.

The Sedona Conference released itsCommentary on Rule 34 and Rule 45 "Possession, Custody, or Control". The Commentary is intended to provide practical, uniform and defensible guidelines regarding when a responding party should be deemed to have "possession, custody, or control" of documents and ESI subject to Rule 34 and Rule 45 requests for production. The Commentary further recommends that courts should interpret and enforce Rule 34 "possession, custody, or control" obligations in ways that do not lead to sanctions for unintended and uncontrollable circumstances.

This post was contributed by Patricia O. Erdmann, Office of the Indiana Attorney General. If you would like to submit content or write an article for the Litigation Section page, please email Rachel Beachy at rbeachy@indybar.org.