Court filing discusses privilege and control standards in discovery

Case 9:08-cv-80736-KAM Document 319-1 Entered on FLSD Docket 03/24/2015 Page 31 of 34 Thomas E. Scott, Jr., Esq. Re: Edwards and Cassell v. Dershowitz February 25, 2015 Page 3 Asserting Privilege for Non-Existent Documents It is inappropriate to assert a claim of privilege or immunity for non-existent materials. Greenleaf v. Amerada Hess Corp., 626 So0.2d 263, 264 n.1 (Fla. 4° DCA 1993). We must assume that the privilege is asserted for a reason, i.e., that responsive and ostensibly privileged information in fact exists, else the privilege would not have been asserted. It follows that a privilege log must accompany all such responses. Claiming Undue Burden for Non-Existent Materials Likewise, objecting on basis of burdensomeness and later conceding an opponent's right to materials or later claiming materials do not exist constitute abusive discovery practices. First Healthcare Corp. v. Hamilton, 740 So.2d 1189, 1194 (Fla. 4" DCA 1999). Custody, Possession & Control Fla. R. Civ. P. reaches all documents (broadly defined and specifically including electronic data) in your client's "custody, possession, or control." Custody and possession are self-explanatory. "Control" is broader; it "means the legal right to obtain, even from nonparties. The concept of ‘control’ generally has been held to mean the legal right to obtain the requested documents. Parties thus can be requested to produce documents in the hands of their attorney, insurer, subsidiary, or another person outside the jurisdiction of the court." Lawrence M. Watson, Jr. & Michael S. Orfinger, Fla. Civil Practice Before Trial § 16.60 (1993 ed.) (citing 8 Wright & Miller, Fed. Practice & Procedure £16-10 (1998 ed.). A recent federal court case construing Fed. R. Civ. P. 41 (on which Fla. R. Civ. P. 1.350 is patterned), explained: The term "control" comprehends not only possession but also the right, authority, or ability to obtain the documents. Accordingly, Rule 34(a) allows a party seeking discovery to require production of documents beyond the actual possession of the opposing party if such party has retained "any right or ability to influence the person in whose possession the documents lie." [A] party is deemed to have control over documents held on its behalf by its attorneys. A party is also deemed to have control over financial records of the party that are in the possession of the party's accountant. MGP Ingredients, Inc. v. Mars, Inc., 2007 WL 3353401 (D. Kan. 2007) (citation omitted); see also In Re Ski Train Fire of November 11, 2000 Kaprun Austria, 2006 HOUSE_OVERSIGHT_014114