Courts Will Not Compel Production of Unavailable Information

The Defendants in a medical malpractice case sought discovery from the Plaintiffs related to billing and care records from the Plaintiffs. The problem: the unavailable records were at hospitals in the United Arab Emirates. Al-Ameri v. Johns Hopkins Hosp. (D.Md. May 26, 2016, No. GLR-15-1163) 2016 U.S. Dist. LEXIS 68980, at *5-8.

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The Plaintiffs spent over a year trying to respond to the requests, going so far as to providing the Defendants with authorization to acquire the medical records from UAE hospitals. Al-Ameri, at *7. Plaintiffs also provided the daily rate for care in the UAE and records they personally obtained. Id.

Common sense came to the rescue in this case. As Judge Stephanie Gallagher explained:

The so-called “discovery dispute” regarding these document requests, then, is not really a dispute at all. Plaintiffs concede that they must produce the existing requested documents, but the fact remains that, for over a year, they have tried, and failed, to do so. Thus, as discussed during the status conference call, there is no reason to grant Defendant’s motion as to Requests Nos. 4, 5, 20, and 21, since doing so would be futile. Plaintiffs are not engaging in gamesmanship or withholding information. They acknowledge that the documents are crucial to the case, but are presently unable to obtain them. Compelling these documents would not suddenly change Plaintiffs’ situation or make the documents producible.

Al-Ameri, at *7-8.

There are many cases with gamesmanship where attorneys try hiding the ball. This case represents the real frustration of a party trying to comply with discovery requests, but not being able to, because the information is outside of their control.

How is this relevant to eDiscovery? It is very possible for cloud storage to have issues of “possession, custody, or control” in extreme situations if a provider goes out of business. These situations could have messy issues of “control.” In those extreme situations, Courts would have to be sure they are not ordering parties to produce what they do not have.

Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg in 2013, 2014, and 2015, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.