“Courts apply the legal control test to requests for 2 || documents under both Rule 34 and Rule 45”
How later courts described this case
- “Courts apply the legal control test to requests for 2 || documents under both Rule 34 and Rule 45”
Written by the judges who cited it.
The opinion
1 UNITED STATES DISTRICT COURT
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NORTHERN DISTRICT OF CALIFORNIA
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SAN JOSE DIVISION
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MATT JONES; BRYSON DECHAMBEAU; Case No. 5:22-CV-04486-BLF
5 PETER UIHLEIN; and LIV GOLF, INC.,
ORDER RE: PLAYER AGENT
6 Plaintiffs, DISCOVERY DISPUTE
7 v. Re: Dkt. 153
8 PGA TOUR, INC.,
9 Defendant.
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PGA TOUR, INC.,
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Counter-Claimant,
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v.
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LIV GOLF, INC.,
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Counter-Defendant.
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Before the Court is the parties’ Joint Statement regarding their dispute over the collection
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and production of custodial ESI from agents representing professional golfers Phil Mickelson,
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Talor Gooch, Hudson Swafford, and Ian Poulter (collectively, the “Players”). Dkt. 153. The
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Players were initially Plaintiffs in this action, until they dismissed their claims on September 27,
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2022.
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The Players have accepted service of the PGA TOUR, Inc.’s (the “TOUR”) subpoenas
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seeking the production of documents. The TOUR’s subpoenas defined the responding party as
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including the Players’ “attorneys, agents . . ., member[s], or employee[s], or any other person
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acting on [their] behalf.” The federal rules require production of documents that are within the
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“possession, custody, or control” of the responding person or entity. Fed. R. Civ. P. 34(a)(1).
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That standard applies no matter whether the responding person is a party to the litigation or a
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third-party subject to Rule 45. See In re Citric Acid Litig., 191 F.3d 1090, 1107 (9th Cir. 1999)
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(“the legal control test is the proper standard under Rule 45”); see also In re ATM Fee Antitrust
Litig., 233 F.R.D. 542, 545 (N.D. Cal. 2005) (“Courts apply the legal control test to requests for
2 || documents under both Rule 34 and Rule 45”). “Control” is the generally defined as “the legal
|| right to obtain documents upon demand.” In re Citric Acid Litig., 191 F.3d at 1107-08. Further,
[uJnder established Ninth Circuit law, materials in the possession of an agent are within the
|| “control” of the responding person and must be produced. See, e.g., St. Jude Med. S.C., Inc. v.
|| Janssen-Counotte, 305 F.R.D. 630, 638 (N.D. Cal. 2015) (citing In re Citric Acid Litig., 191 F.3d
7 || at 1107). Itis not credible that the Players cannot obtain responsive documents from their own
8 || agents, which with the use of limiter terms relate only to the agents’ representation of the Players.
|| The Players’ focus on the means of identifying responsive documents — via agreed upon ESI
|| search terms — is too narrow. The reliance on Rojas v. Bosch Solar Energy Corp., 2020 WL
11 || 8617414 (N.D. Cal. Aug. 28, 2020), and its analysis of “control” in the context of complex
12 || corporate structures is similarly misplaced.
13 Accordingly, the Court concludes that custodial ESI (email and device-level data) in the
14 || actual possession of the Players’ agents is within their “control” within the meaning of Rules 34
15 || and 45. Accordingly, the Players are ORDERED to run the parties’ previously-agreed upon
16 || search terms over their agents’ ESI, with the addition of added limiter terms designed to limit the
17 || scope of the results to materials related to their agents’ representation of the Players and not other
18 || potential principals. The Players are further ORDERED to produce non-privileged materials
19 || responsive to the TOUR’s subpoenas. The Players are further ORDERED to provide the TOUR
20 || with a log of all responsive materials withheld on the basis of any claim of privilege or protection
|| from disclosure.
22 SO ORDERED.
23 Dated: November 17, 2022 usm varKul
HON. SUSAN VAN KEULEN
24 United States Magistrate Judge
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