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“Legal Right” and Not “Practical Ability” Required to Compel Party to Produce 3rd Party Documents

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As a party to the litigation, what type of third party documents are considered within my “control” for Rule 34(a) purposes? This is the question that Magistrate Thynge answered in the recent decision of Inline Connection Corp. v. AOL Time Warner Inc., et al., C.A. No. 02-272-MPT, 2006 U.S. Dist. LEXIS 72724 (D. Del. Oct. 5, 2006).

The Court reaffirmed that the District of Delaware does not apply the “practical ability” test set forth by the Second Circuit, but instead will only consider documents to be within a party’s “control” if they have a legal right to obtain the documents. Magistrate Thynge distinguished the Third Circuit opinion of Mercy Catholic Med. Ctr. v. Thompson, 380 F.3d 142 (3rd Cir. 2004) where the Court did apply the “practical ability” approach. In that case the relationship between the party litigant and the third party was that of a principal and agent and not between two independent corporations. The test may also be different should the parties have a parent-subsidiary relationship. The take-away message…if you don’t believe the party-litigant to have the legal right to obtain the documents you need, make sure to subpoena that third party before the fact discovery cut-off.

Inline Connection Corp. v. AOL Time Warner Inc., et al., C.A. No. 02-272-MPT, 2006 U.S. Dist. LEXIS 72724 (D. Del. Oct. 5, 2006)

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