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Court Rejects Defendant’s Claim He Does Not Have Control of Responsive Documents: Court Says Custody and Control Compels Production

Posted on February 9th, 2018

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Follow our blog for future updatesIn Rabang, et al., v. Kelly et al., No. 2:17-cv-00088-JCC, U.S. Dist. Ct. (W.D. Wash. 2017) the United States District Court for the Western District of Washington compelled the Defendants to produce multiple documents after, as the Court described, Defendants stonewalled Plaintiffs in their requests.

Defendant has refused to produce responsive documents in his possession, custody and control. Co-Defendants have failed to answer discovery requests. Plaintiffs thus move the Court to compel discovery.

Defendant claims that he does not have “control” of the responsive documents. The Court says “Control” is the legal right to obtain documents on demand. Documents may be in Defendant’s “custody” or “control” even if in the physical possession of someone else. Defendant clearly has possession, custody and control of documents from his personal email account and must therefore produce responsive documents from that email account. Defendant already produced three emails from his email account. By his own, very limited document production, Defendant has demonstrated that he has “possession, custody or control” of documents from that account.

Regarding non-party Defendants, even if the Ninth Circuit finds that Co-Defendants are immune (due to sovereign immunity) they would still be subject to discovery as non-parties on Plaintiffs’ claims. Non-party Co-Defendants claim of sovereign immunity may limit the discovery allowed, however, it does not release non-party Co-Defendants from participation in litigation.

The Non-Party Co-Defendants claim that tribal sovereign immunity shields them from compliance. Tribal sovereign immunity is only triggered, however, where a subpoena is served on the Tribe itself, which is not the case here. Further, even if Tribe’s sovereign immunity shielded the Non-Party Co-Defendants from compliance—it does not—the Tribe presently lacks standing or ability to assert that immunity.

For the aforementioned reasons, the Court compels Defendants to comply with all discovery requests in full by the end of discovery date.

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