Three Current Tests to Determine “Possession, Custody and Control” in Response to a Subpoena

Most people react in one of two ways when they receive a subpoena: ignore it, or panic. Your attorney will help you prepare your response to the subpoena in a way that complies with the law, preserves your or your company’s rights, and protects the confidentiality of personal or business information.

Bear the following in mind when you receive a subpoena.  Do not ignore the subpoena.  Do not speak with anyone outside you company about the subpoena or the underlying lawsuit or investigation.  Do not destroy or throw away any documents.  Have an attorney can help you determine the validity of the subpoena.  If a subpoena calls for disclosure of confidential information such as trade secrets or business strategy or attorney-client  communications, your attorney may object.  Do not communicate with the attorney or governmental agency that issued or sent the subpoena without first consulting with your attorney.  Your attorney should speak with both the attorney who issued the subpoena and the attorney for the opposing party in any lawsuit.  Never attend a deposition or a trial without an attorney. Your attorney will help you prepare for the deposition or trial and will preserve and protect your rights.

If you receive a subpoena, it is your obligation to diligently search through the electronically and paper stored information in your possession, custody, or under your control.  You are not obligated to go out and round up information outside of your possession, custody, or control.  The issue of whether something is in your possession, custody, or control often comes up in the context of organizations you may have worked or volunteered, whether presently or in the past.  You may not destroy or throw away any responsive information.  This is called spoliation of evidence and there can be serious consequences if something goes missing after you are on notice that you may have evidence relevant to potential litigation.

Three Current Tests to Determine “Possession, Custody and Control”

Currently, courts apply three general tests to determine if a party “controls” documents or electronically stored information requiring them to preserve and produce the information for litigation: 1) The “Legal Right” Standard; 2) The “Legal Right Plus Notification” Standard; and 3) The “Practical Ability” Standard.

Under the “Legal Right” test, a party has “possession, custody or control” of documents if they have the legal right to obtain the information.

Under the “Legal Right Plus Notification” standard, not only does a party have “possession, custody or control” of documents to which it has a legal right, if the party does not have the legal right to obtain documents requested in discovery, but knows a third party possesses them, it must advise the requesting party that a third party has the documents.

Finally, under the “Practical Ability” standard, a party must produce documents and ESI requested in litigation even if they do not have the legal right to obtain the documents, but they have the “practical ability” to obtain them.

If you have concerns about what is in your possession or under your control you may wish to consult a lawyer and consider a response such as:

Dear Sir or Madam,

This email is intended to respond to your subpoena.  I have looked and have no  documents that I am aware of in my possession regarding items [] through [] of the subpoena.

Because I worked/volunteered for [] for several years, I may have sent or seen documents or emails to or from some of the people you listed in connection with a [] email address, but I have none in my possession and I no longer work/volunteer for [] or have access to[]’s email account.

Because I am uncertain and concerned about the subpoena and how it could relate to the work I did for [], I am in the process of considering obtaining a lawyer to help me with this.  I may therefor need some additional time until after I figure out if I need a lawyer or not.

In the meantime, [spouse] and I have searched our own accounts and have located the attached [emails/documents].  I will continue to look and see if I have anything else which would appear to me to be covered.  If I locate anything more I (or a lawyer if I have to get one) will contact you.

Sincerely,

As always, if you have any questions about a subpoena you should consider getting legal assistance.  The law often has many traps for the wary.

Nothing set forth hereon implies or creates an attorney-client relationship or should be considered as legal advice or as creating an attorney-client relationship. An attorney-client relationship can only be created by entering into, executing, signing, and returning a written representation agreement.