Monday, March 27, 2006

D.D.C. Explains Meaning of “Control” in FRCP 34(a)

Per A.S.P.C.A. v. Ringling Brothers, 233 F.R.D. 209 (D.D.C. Feb. 23, 2006) regarding Rule 34:

Rule 34 of the Federal Rules of Civil Procedure permits any party to request the production of documents within the scope of Rule 26(b) and in the “possession, custody or control of the party upon whom the request is served.” Fed.R.Civ.P. 34(a). Control includes documents that a party has the legal right to obtain on demand. Alexander v. FBI, 198 F.R.D. 306, 312 (D.D.C.2000); Tavoulareas v. Piro, 93 F.R.D. 11, 20 (D.D.C.1981). Because a client has the right, and the ready ability, to obtain copies of documents gathered or created by its attorneys pursuant to their representation of that client, such documents are clearly within the client's control. See, e.g., Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 501 (D.Md.2000); Poppino v. Jones Store Co., 1 F.R.D. 215, 219 (W.D.Mo.1940) (“It is quite true that if an attorney for a party comes into possession of a document as attorney for that party his possession of the document is the possession of the party.”). Plaintiffs argue that the documents gathered by defendants' counsel for the purpose of cross-examining Rider are in defendants' “control” and, therefore, must be produced. Mot. to Compel at 18. Defendants argue that the documents at issue are not within their control because such documents are work product and the work product privilege belongs to the attorney as well as the client. Memorandum in Opposition to Plaintiffs' Motion to Compel Defendants' Compliance with Plaintiffs' Discovery Requests (“Defs.Opp'n”) at 23. Because defendants have the legal right and the ready ability to access documents generated and collected by their attorneys in the course of this litigation, I find that the documents are within defendants' control for Rule 34 purposes. Accordingly, defendants cannot object to the production of documents assembled by their counsel to impeach Rider on the ground that they were not in defendants' control.


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