Brian Zemil published “Navigating ‘Control’ in a Matrix of ESI Discovery” in the Winter 2020 issue of Litigation News. The following is an excerpt:
My last column discussed whether the recent amendments to Federal Rule of Civil Procedure 37 displaced the federal courts’ inherent authority to impose sanctions for lost electronically stored information (ESI). A related issue is whether a party has control of, and potential liability for sanctions for loss of, ESI possessed by a third party. Rule 37 does not, however, refer to “control” – a term that the rules and advisory notes do not define.