In Ablan v. Bank of America, Case No. 11 C 4493 (N.D.Ill. Nov. 24, 2014), Defendant sought discovery from Plaintiff regarding documents and data that third-party Tax Strategies Group (TSG) had produced in a related settled state court litigation. Plaintiff stated that it had disposed of the discovery TSG produced in the state court action, and that it had no obligation under FRCP 34 to produce any data that its ediscovery vendor maintained because that data was not under Plaintiff’s custody and control.
Defendants filed a Motion to Compel and for Spoliation Sanctions. Among other allegations, Defendants alleged that the court should sanction Plaintiff for failing to produce the TSG data maintained by Plaintiff’s ediscovery vendor.
Under FRCP 34, parties must produce data within their custody and control, even when not in their physical possession. The court considered whether the data maintained by Plaintiff’s ediscovery vendor could be considered within Plaintiff’s “custody and control.” The court concluded that it was not, reasoning that because Plaintiff did not have a “legal right” to demand the data from its ediscovery vendor, the data was not within Plaintiff’s “custody and control.” Further, the court noted that Defendants could have easily subpoenaed the data from the vendor, which they failed to do.
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