How Far Does a Party’s Legal Obligation to Produce Extend?

How Far Does a Party’s Legal Obligation to Produce Extend?

Author: Markiana Julceus


Case Citation: Jackson v. E-Z-Go Div. of Textron, Inc., No. 3:12-CV-154-TBR, 2016 U.S. Dist. LEXIS 146951 (W.D. Ky. Oct. 21, 2016)


Employee/Personnel/Employer implicated:   Outside Counsel


eLesson Learned: A Defendant’s duty to produce only extends as far as their control, and “control” under FRCP 34 means the “practical ability to obtain” the discovery.


Tweet This: Control for discovery purposes is limited by practicality.



FRCP 34 provides that discovery requests upon another party are proper if the production sought is “in the responding party’s possession, custody, or control.” “Control” is likely broader than you think it is. 

This products liability lawsuit arose out of an accident involving an electric golf cart that led to the tragic death of one of the passengers. As part of the lawsuit against the golf cart manufacturer, Plaintiff, the deceased’s mother, sought discovery of incident reports, involving both the cart at question and other products the Defendant produced over the years, believing that the discovery would show that the Defendant was aware of these supposed defects. The Magistrate Judge directed the Defendant to produce non-privileged information from both internal and external sources regarding “other E-Z-GO incidents related to any of the four design features and other E-Z-GO incidents for which Defendants are not able to exclude that possibility that the incident may relate to those features.”  The “internal sources” included company records stored in an off-site, records of and correspondence with Defendants’ in-house counsel relating to prior claims and incidents, and Defendant’s own risk database known as “Risk Console”.  The “external sources” referred to outside vendors, including insurance companies, outside legal counsel, and expert witnesses who provided services in prior litigation.

The Defendant strenuously objected on several grounds, the foremost of which was the argument that the information in the possession of external sources was not within their control. In assessing the external sources, the District Court agreed with the Magistrate Judge that the incident records from the company’s former counsel were within the Defendant’s control. As a result of the previous legal relationship between the parties, the Defendant’s had the “legal right to obtain the documents on demand.”  However, the District Court reversed with respect to information possessed by former insurance carriers, former expert witnesses, and former litigation consultants.  The defendant “has no practical ability, and therefore no ‘legal right’ to demand that independent third parties, not involved in the current litigation perform searches of their documents and produce documents that did not arise out of the current litigation.” The Court refused to require that the Defendant track down third parties and force those third parties to search through their documents in order to provide the requested discovery.


In short, what constitutes “within a party’s control” for discovery purposes is broader than you think it is but limited enough to ensure that discovery won’t become an undue burden.


Markiana received her B.S. in Diplomacy and International Relations from Seton Hall University in 2014 and will receive her J.D. from Seton Hall University School of Law in May 2017. After graduation, Markiana will clerk for an Associate Justice of the New Jersey Supreme Court.

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