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Agreements, agents, and access: Examining the ‘indicia’ of control in Rule 34(b)

If some or all of these indicators are present, a court may find that a company has an obligation to preserve the third party’s documents

In the first two segments of this six-part series on third party discovery, we discussed the concept of “control” and its varied interpretations depending on the jurisdiction. This piece looks at the “indicia” of control for Rule 34(b) purposes. It should come as no surprise that the Rule 34 analysis is a highly factual one, with a focus on the relationship between the company and the third party. The following are some indicia a court might consider.

Contractual provisions

Other factors

In addition to these traditional indicators, courts have also considered the following factors in determining whether a company has “control” of a third party’s documents for purposes of Rule 34(b):

Contributing Author

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Sandra C. McCallion

Sandra C. McCallion is a partner at Cohen & Gresser LLP and a member of the firm’s Litigation and Arbitration and Intellectual Property and Technology...

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Contributing Author

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Melanie A. Grossman

Melanie A. Grossman is an associate in Cohen & Gresser LLP’s Litigation and Arbitration practice group.

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