Brief Fact Summary. Plaintiff, Hart (Plaintiff), brought a defamation suit against the Defendant, Wolf (Defendant). Defendant obtained an order to subpoena records of the corporation for whom Plaintiff was employed. Plaintiff argued the order could not be justified because the records were not within his control, custody, or possession.
Synopsis of Rule of Law. A prima facie case of control is all that need be established to justify issuance of an order under Federal Rules of Civil Procedure Rule 34.
We hold that even though there had not been a final determination on the merits in this case, defendant Wolff clearly was the prevailing party and as such was entitled to attorney's fees as costs.View Full Point of Law
Issue. Whether Plaintiff had control over records that Defendant sought to be produced.
Held. Yes. The order to produce the records of the corporation was proper. Plaintiff failed to rebut the prima facie showing of control made by Defendant. Dismissal of the complaint was proper because Plaintiff made no timely effort to comply with the order to produce, nor offered any explanation as to why the documents had not been produced.
Dissent. There were neither policy considerations nor any precedential bases for the majority to substitute an “influence” test for the “possession, custody, or control” standards of Federal Rule of Civil Procedure (FRCP) Rule 34. Questioned why Defendant never attempted to use any other discovery procedures to obtain the corporation’s documents, such as FRCP Rule 45(d)(1), concerning a subpoena directed to a nonparty.
Discussion. Courts favor liberal construction of the civil rules concerning discovery. FRCP Rule 34 only requires a prima facie showing of control to establish justification for an order to produce. Here, the court found Plaintiff’s managerial role and influence within the corporation sufficient to show control.