Supreme Court Defines Possession, Custody, or Control

In a marijuana licensing case, the Supreme Court of Nevada has defined this phrase for the first time.  State, Dep’t of Taxation v. Dist. Ct. concerns ongoing litigation about how the State processed marijuana dispensary license applications.[1]  The Department contracted with a temporary staffing agency to provide workers to process the applications.  In the later litigation, a party wanted the Department to produce the contents of those workers’ cell phones.  The Department responded it did not have possession, custody, or control of the phones.  The district court disagreed.

Normally I would expect a writ petition on this issue to be summarily denied without even getting to its merits.  The Supreme Court heard this petition “[b]ecause this court has yet to define ‘possession, custody, or control’ within the meaning of the Nevada Rules of Civil Procedure, and because diverging federal authority risks imposing inconsistent results for different litigants….”

The court noted the two competing interpretations within the federal system.  Depending upon the circuit, “possession, custody, or control” can be 1) “where the party has actual possession of or a legal right to obtain the same;” or 2) “if a party has actual possession of them or the practical ability to produce them—even absent an accompanying legal right to such material.”  The Court decided “possession, custody, or control” in Nevada means “‘actual possession or legal control,’ as that approach best prevents unreasonable results.”  This was preferable in part because Rule 45 exists so parties can obtain documents from non-parties.  Rule 45 contains protections for non-parties that Rule 34 does not.  Allowing the requesting party to get around Rule 45 would only weaken the rule.

Applied to the facts at issue, the Department did not have possession, custody, or control.  The moving party was instead directed to Rule 45.

[1] 136 Nev. Adv. Op. 42 (July 9, 2020).