International E-Discovery: How The 11th Circuit’s Interpretation of Possession, Custody, or Control May Impact Multinational Corporations

Courts have different ways of deciding who has to hand over electronic information in a legal case. In some places, the rule is based on who legally owns the information, while in others it’s based on who can actually get it. This can be a big issue, especially in places like South Florida, where a lot of international companies do business. It’s tricky because sometimes the information that’s being asked for is private or protected. The law requires parties in a lawsuit to share electronically stored information they have, or that is in their control, with the other side. This includes things like documents, images, and data. “Control” can be tricky to figure out, because it doesn’t just mean physically having something. It can also mean having power over something, even if you don’t actually have it. The rules don’t give a clear definition of what “possession, custody, or control” mean, so this can cause confusion in legal cases. In simple terms, courts have had trouble figuring out what “possession, custody, or control” of electronic evidence means. Different courts have different interpretations, like whether it means having the legal right to get the evidence, or actually being able to access it. The Sedona Conference, a group that helps shape e-discovery rules, doesn’t like the practical ability standard. Attorneys in the 11th Circuit need to be aware of these differences to help their clients follow the rules. In the past, the 11th Circuit said control means having the legal right to get the evidence. But recently, they’ve been leaning towards the practical ability standard, especially for electronic evidence. Courts in Florida have had different interpretations of what “control” means when it comes to electronic documents in legal cases. Some say it means having the legal right or practical ability to get the documents, while others say it’s a blend of both. This can create confusion for lawyers and parties involved in legal cases. In late 2017, the Middle District of Florida made a decision in a court case about a party’s ability to control evidence from a non-party. The court said that a party might control a non-party if they have a relationship or contract that allows them to get information from the non-party. Even though this decision doesn’t have as much weight as a decision from the 11th Circuit, it’s still important because district courts handle discovery, and their decisions are only reviewed with a lenient standard. This has real implications for parties’ obligations to keep evidence and for companies with branches in other countries. If a company has the ability to control and preserve evidence, they could be held responsible for not doing so, even if the evidence is not directly in their possession. For example, if an employee has important files from a previous job and their new employer knows about it and could have access to the files, the new employer could be in trouble for not preserving the evidence. But if the files were copied somewhere else and the employer didn’t act in bad faith, they may not get in trouble. Corporate parties with electronically stored information should be aware of the practical ability standard for discovery in the 11th Circuit, which may require them to produce documents or information that they don’t actually have control over. Legal advisors should prepare their clients for this by advising them on how to preserve documents they don’t have direct control over.

For multinational corporations with cross-border entities, this could be especially challenging, as they may be required to produce information from their affiliates in other countries. This could potentially override the legal separations between different entities in other jurisdictions.

Ultimately, this means that corporations need to think strategically about how they structure and store their information, as the legal requirements for discovery may not always align with corporate formalities. In the Third Circuit, the court in Delaware follows a strict standard for determining if a party has control over documents. The party seeking the documents must prove that the other party has the legal right to obtain them. This can happen if the other party is closely connected to a sister corporation or if they worked together on the issue being litigated. If a defendant doesn’t have the right to get the documents from a related company, they usually won’t have to give them up in a lawsuit. The 11th Circuit in Florida has a standard for electronic discovery that may make it easier for plaintiffs’ lawyers to get information from big companies. This could lead to more lawsuits being filed in that area to get access to electronic information, even if it’s outside the U.S. This could give lawyers more power in lawsuits against big companies. The legal right standard requires a party to provide documents and electronic information they have a legal right to obtain. A corporate party may need to produce documents from a sister corporation or other affiliate, even if they don’t directly control them. This can be based on a practical ability to obtain the documents, such as an employer’s power over an employee. The lack of clarity in this standard can affect both plaintiffs and defendants in a lawsuit. The company was criticized for not telling an employee to save important files, but the court said the deleted files weren’t crucial. The legal rules about who has to provide documents in a lawsuit can be tricky. Sometimes a company in the U.S. can be made to give documents for a lawsuit in another country. This is called “Section 1782.” Forum shopping, or trying to have a lawsuit in the court that’s most likely to rule in your favor, is controversial because it can lead to different outcomes in different courts. Courts in the 11th Circuit have different standards for determining legal rights. Some recent district courts have mixed up the standards or chosen the practical ability standard. Effie D. Silva works for the biggest US food company, Sonia Zeledon works for Nokia, and Justin M.L. Stern is a recent law school graduate. They all work in legal roles.

Source: https://www.floridabar.org/the-florida-bar-journal/international-e-discovery-how-the-11th-circuits-interpretation-of-possession-custody-or-control-may-impact-multinational-corporations/