The Sedona Conference is looking for public comments as it tries to come up with an explanation related to documents and electronically stored information (ESI).

The topic under review is related to when a responding party should have “possession, custody, or control” of documents and forms of ESI.

Rule 26(a) of the Federal Rules of Civil Procedure provides for the discovery of “documents, electronically stored information, and tangible things” in the responding party's “possession, custody, or control.” In addition, Rule 34(a) and Rule 45(a) mean a party presented with a document request or subpoena need to produce “documents, electronically stored information, and tangible things” in that party's “possession, custody, or control.”