A Party Must Produce Documents in His/Her Control Even if Not in His/Her Possession

Posted on by Jennifer Buell in Litigation.

Under the Maryland Rules of Civil Procedure, is it acceptable for a party to produce only a portion of the documents requested in discovery because those are all of the documents in his/her possession? Current case law in Maryland says no.

It is common practice as part of discovery to propound Requests for Production of Documents on an opposing party. It has also become quite common for the responding party to produce only those documents within his/her possession, claiming no further obligation to obtain and produce others. Such is not the case in Maryland. The presiding case on this issue is Pleasant v. Pleasant, 97 Md.App. 711 (1993), which was a domestic case involving the division of marital property. Id. It appears that the wife requested during discovery that the husband produce documentation concerning his taxes and pension, which he failed to do and sanctions were imposed. Id. On appeal, the husband asserted that sanctions should not have been imposed by the trial judge because the requested documents were not in his possession. Id.

As there was no Maryland appellate decision at the time, the Maryland Court of Special Appeals looked to decisions at the federal level. Id. “It is clear from such decisions that control is not synonymous with possession, but refers to the ‘right, authority, or ability to obtain upon demand.’” Id. (quoting Scott v. Arex, Inc., 124 F.R.D. 39 (D.Conn.1989)). The Maryland appellate court found that the husband’s documents were within his control and properly the subject of appellee’s discovery request. Id. “Where documents are within the control of the party upon whom a request for production of documents has been made, that party must obtain and produce those documents. To hold otherwise would be to permit circumvention of the discovery process and create unnecessary expense.” Id.