In anticipating litigation, one of the first items on a prudent litigator’s checklist is ascertaining what documents must be preserved and putting a preservation plan in place. A duty to preserve arises when a party "knows or reasonably should know" that litigation is foreseeable.1 Once the duty to preserve arises, a party must put a litigation hold in place to ensure that relevant documents are preserved.2 Notably, "[t]he preservation obligation runs first to counsel, who has a duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction."3 Consequences for failing to observe the duty to preserve can be serious, including spoliation and monetary sanctions.4

Federal Rule of Civil Procedure 34(a) provides that a party may request another party to produce documents within that party’s "possession, custody, or control." Federal courts construe "control" broadly for Rule 34 purposes. Control may exist if a party has "the right, authority, or practical ability, to obtain the documents from a nonparty to the action."5 Control is easy to establish when a party to the litigation has possession or custody of the documents ascertain. When third parties possess documents that may be relevant to an action, however, determining whether there is "control" can be more complicated.

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