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When Does a Party Control ESI?

Courts have adopted three different tests that determine when a party controls electronically stored information.

The Legal Right Standard - adhered to by the 3d, 5th, 6th, 7th, 10th, & 11th Circuits - provides that a party will control ESI when a contract states that it owns it.

Under the Legal Right Plus Notification standard a party is obligated to disclose to a requesting party that the third party has possession of its electronic files, and if it is aware that a party has access to the data then it must disclose this as well.

The “Practical Ability” Standard states that a party must produce ESI it can readily obtain.

The Sedona Conference has rejected this last standard, and states that a party should have actual possession.


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