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.
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):