Authored By: Adam L. Peterson

Citation: Haskins v. First Am. Title Ins. Co., 2012 WL 5183908 (D.N.J. Oct. 18, 2012).

Employee/Employer Implicated: Company; Counsel

e-Lesson Learned: A litigant will be deemed in "control of" documents that are relevant to the litigation, even if they are in the possession of a third party, if the litigant has a contractual right to obtain those documents from the third party.

Tweet This: Greater rights in contract mean greater obligations in discovery.

In Haskins v. First Am. Title Ins. Co., the court was asked whether a title insurance company (the "Insurer") is in "control" of documents that are in not in the Insurer's possession, but where the Insurer has the contractual right to direct those with possession to produce the documents. The district court found in the affirmative, demonstrating that in some circumstances, the more extensive one's contractual rights, the more extensive its obligations in discovery. The plaintiffs sought class certification, which defined the class as all New Jersey consumers who paid premiums in excess of regulated title insurance refinance rates during the class period. The plaintiffs alleged that the Insurer had overcharged for title insurance over a period of several years. During discovery, plaintiffs sought certain documents in the possession of certain independent title agents, who were not employees of the Insurer, but with whom the Insurer had a contractual relationship. The representative contracts made all documents "available for inspection and examination by [the Insurer] at any reasonable time." The court inquired as to whether such documents are in the "control" of the Insurer, because pursuant to Fed. R. Civ. P. 34(a), a party may request another party to produce documents within that party's "possession, custody, or control." Thus, if such documents were in the "control" of the Insurer, the plaintiffs could properly request that they be produced in discovery. The Insurer argued that it should not be required to produce documents in the physical possession of its agents because it does not possess or control the requested documents. However, the court did not struggle to conclude that the Insurer's agency contracts plainly indicate that it has control over and access to the documents. It drew this conclusion based on the premise that there is control if a party “has the legal right or ability to obtain the documents from another source upon demand.” Haskins demonstrates the potential for increased discovery obligations for those that have negotiated extensive rights in contract. That is, the greater rights in contract, the potential for broader obligations in discovery. While this factor may not drive the decision making for those negotiating contracts, contract parties should at least be aware of this consequence Adam L. Peterson 2014 graduate of Seton Hall University School of Law. While at Seton Hall, Adam was a member of the Seton Hall Law Review and prior to law school Adam was an Environmental Analyst with the New York State Department of Environmental Conservation.