[EDRM Editor’s Note: The opinions and positions are those of Michael Berman.]
I have written of the need for a national uniform definition of “possession, custody, or control.” Possession, Custody, or Control – Need for a Uniform National Standard – Part II (Feb. 18, 2026). The two most prominent tests are the “legal right” and the “practical ability” standards. As noted in the blog, the Sedona Conference has suggested that the boundaries sometimes blur.
A recent decision applied the “practical ability” standard that I favor. At issue was whether employees of a bankrupt entity had possession, custody, or control of a report that their employer voluntarily gave them, even though they appear to have lacked the legal right to obtain that document from the employer. In short, they had the “practical ability” but not the “legal right” to obtain the document.
In short, they had the “practical ability” but not the “legal right” to obtain the document.
Michael Berman, Owner, E-Discovery LLC.
In Estate of Funkhouser v. Delaware County, 2026 WL 473344 (E.D. Pa. Feb. 19, 2026), the estate of a deceased inmate sued the County and its in-house medical provider, Wellpath LLC, as well as Wellpath employees.
After the in-custody death, Wellpath prepared and sent a statutory report “exclusively” for the Center for Patient Safety under the Patient Safety and Quality Improvement Act of 2005 (“PSQIA”). The Funkhouser court severed the claims against Wellpath because it had filed bankruptcy. Wellpath obtained a discharge from the bankruptcy court and discovery resumed. Wellpath was no longer a party.
In note 3, the court wrote that “the Wellpath Employees provided me a copy of the Report to review in camera, and explained in their cover letter that they requested Section 3 of the Report from Wellpath and would produce it to me as soon as they had it. They produced Section 3 for my review on February 17, 2026. They were also able to obtain an affidavit from a Wellpath executive to support their opposition to the Motion To Compel.”
One issue was whether Wellpath’s employees had possession, custody, or control over Wellpath’s Report. TheFunkhouser court wrote:
As set forth during my call with the Parties, the Wellpath Employees’ conduct in this case—particularly since Wellpath was no longer a defendant—demonstrates that I can compel them to produce the Report, even if it belongs to Wellpath. “[L]egal ownership of a document is not determinative” of whether a court can compel a party to produce it. In re Sunrise Sec. Litig., 109 B.R. 658, 661 (E.D. Pa. 1990). Instead, litigants must produce responsive documents that are within their “possession, custody, or control.” Fed. R. Civ. P. 34(a)(1)(A). “ ‘Control’ under Rule 34 is construed broadly.” Fed. Trade Comm’n v. Am. Future Sys., Inc., No. 20-cv-02266, 2023 WL 3559899, at *2 (E.D. Pa. Mar. 28, 2023), report and recommendation adopted as modified, 2023 WL 3559319 (E.D. Pa. May 17, 2023). Thus, a party may have requisite control, for purposes of Rule 34, if the party has the legal right, authority, or practical ability to obtain the document. See Mercy Cath. Med. Ctr. v. Thompson, 380 F.3d 142, 160 (3d Cir. 2004); Mirlis v. Greer, 80 F.4th 377, 382 (2d Cir. 2023). Given the Wellpath Employees’ practical ability to obtain documents from Wellpath—including the Report at issue—I have little trouble concluding that they have the requisite control of the Report, such that the Federal Rules of Civil Procedure empower me to compel them to produce it.
Id. at * 2 (emphasis added).
The Funkhouser court also held that, on the facts presented, the PSQIA privilege did not apply. It concluded “the Wellpath Employees must produce [the Report] to Elliott Naythan Funkhouser, Sr.’s Estate.”
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