United States District Court, D. Connecticut
RULING AND ORDER
B. FITZSIMMONS UNITED STATES MAGISTRATE JUDGE
to Compel [Doc. #302]
seeks an order compelling production of documents relating to
a “Farmer's Hill Trust.” [Doc. #302]. For the
reasons that follow, plaintiff's Motion to Compel and
Motion for Costs and Attorneys Fees are DENIED.
September 19, 2016, defendant Pappas disclosed that in 2014
he served as the guarantor for the purchase by an entity
called “Farmer's Hill Trust” of a property
located at 27 Farmer's Hill Road, Andover, Maine. In a
response to an Interrogatory dated November 16, 2016,
defendant provided further information stating,
The property was purchased by Farmer's Hill Trust, the
trustee of which is Julie Webber, my girlfriend, and the
beneficiary of which is Ms. Webber's daughter. The
property was purchased from Mr. and Mrs. Shaffer (possibly
Bob and Jean). I am not certain of the purchase price but
believe it was approximately $27, 000, with a $1, 000 down
payment and $600 monthly payment. I served as guarantor
because I wanted to help my girlfriend and the seller wanted
an additional person to be made liable for payment.
[Doc. #302-3, Pl. Ex. C (Answ. to Interrog. No. 2)]. He
added, “I have no relationship with Farmer's Hill
Trust.” Id. (Answ. to Interrog. No. 3). After
plaintiff informed defendant that she believed that his
response was inadequate, a supplemental response consisting
of a letter dated February 9, 2017, from an attorney in Maine
was provided, stating that he had reviewed the trust
documents and reporting that “Charlie Pappas is not a
grantor, trustee or beneficiary of said Trust. Nor is he is
[sic] mentioned anywhere in the language of the Trust.”
[Doc. #302-4, Pl. Ex. D].
15, 2017, plaintiff again requested that Mr. Pappas provide
copies of the Trust documents. [Doc. #302-5, Pl. Ex. E].
Defendant's counsel responded that, “Mr. Pappas has
informed me that he has requested the trust documents from
his girlfriend and she has refused to provide them to
26(b)(1) of the Federal Rules of Civil Procedure outlines the
scope of discovery. Under the Rule, parties “may obtain
discovery regarding any nonprivileged matter that is relevant
to any party's claim or defense and proportional to the
needs of the case.” Relevance involves a consideration
of “the importance of the issues at stake in the
action, the amount in controversy, the parties' relative
access to relevant information, the parties' resources,
the importance of the discovery in resolving the issues, and
whether the burden or expense of the proposed discovery
outweighs its likely benefit.” Fed.R.Civ.P. 26(b)(1).
Even when a request seeks relevant matter, the court can
limit such discovery when “the discovery sought is
unreasonably cumulative or duplicative, or can be obtained
from some other source that is more convenient, less
burdensome, or less expensive.” Fed.R.Civ.P.
26(b)(2)(C). See During v. City Univ. of New York,
No. 05 CIV. 6992(RCC), 2006 WL 2192843, at *4 (S.D.N.Y. Aug.
1, 2006) (“Even if the information sought is relevant,
courts have the authority to forbid or to alter discovery
that is unduly burdensome.”).
Court agrees with plaintiff that the Trust documents are
relevant and the discovery request is proper, pursuant to
Fed.R.Civ.P. 26(b)(1), to determine whether “Defendant
Pappas is benefiting from this property or the trust.”
[Doc. #302 at 3]. However, the Court disagrees with
plaintiff's argument that Pappas should be compelled to
produce the Trust documents because “he has shown that
he has some level of access to the documents by producing a
letter from an attorney who reviewed them.”
Id. Rather, plaintiff must accept defendant's
representation that “he has requested [the responsive]
documents from his significant other, who denied the
request.” [Doc. #306 at 1]. (citing Pl. Ex. E)].
It is well-established that “a party is not obliged to
produce...documents that it does not possess or cannot
obtain.” Shcherbakovskiy v. Da Capo Al Fine,
Ltd., 490 F.3d 130, 138 (2d Cir. 2007). Pursuant to
Fed.R.Civ.P. 34, a party may serve on another party a request
“to produce ... items in the responding party's
possession, custody, or control.” A party
“controls documents that it has the right, authority,
or ability to obtain upon demand.” Scott v. Arex,
Inc., 124 F.R.D. 39, 41 (D. Conn. 1989) (citations
omitted). Plaintiffs bear the burden of establishing that the
documents are in GE's control. See Pitney Bowes, Inc.
v. Kern Int'l, Inc., 239 F.R.D. 62, 66 (D. Conn.
Grayson v. Gen. Elec. Co., No.
3:13-cv-1799(WWE)(WIG), 2016 WL 1275027, at *1 (D. Conn. Apr.
1, 2016). Plaintiff has not sustained her burden of showing
the requested documents are within defendant's
possession, custody, or control. Defendant has made a showing
that he is not a grantor, trustee or beneficiary of the Trust
and that he does not possess copies of the relevant
documents. Further, he states he has requested the documents
from his girlfriend and she refuses to provide them. See
Fed.R.Civ.P. 26(1)(A)(ii)(requiring the initial disclosure of
“a copy...of all documents, electronically stored
information, and tangible things that the disclosing party
has in its possession, custody, or control and may use to
support its claims or defenses, unless the use would be
solely for impeachment.”); Fed.R.Civ.P.
34(a)(1)(authorizing service of discovery requests for
certain “items in the responding party's
possession, custody, or control”); Fed.R.Civ.P.
45(a)(1)(iii)(requiring subpoenas which “command each
person to whom it is directed to...produce designated
documents, electronically stored information, or tangible
things in that person's possession, custody, or
Courts have universally held that documents are deemed to be
within the possession, custody or control if the party has
actual possession, custody or control or has the legal right
to obtain the documents on demand. Starlight
International v. Herlihy, 186 F.R.D. 626, 635 (D. Kan.
1999). “Control” comprehends not only possession,
but also the right, authority, or ability to obtain the
documents. Super Film of Am., Inc. v. UCB Films,
Inc., 219 F.R.D. 649, 651 (D. Kan. 2004). Therefore,
Rule 34(a) enables a party seeking discovery to require
production of documents beyond the actual possession of the
opposing party if such party has retained any right or
ability to influence the person in whose possession the
documents lie. Id. The party seeking production of
the documents bears the burden of proving that the opposing
party has the control required under Rule 34(a). Id.
Tomlinson v. El Paso Corp., 245 F.R.D. 474, 476-77
(D. Colo. 2007).
of the Federal Rules of Civil Procedure provides a mechanism
under Rule 45 to subpoena the Trustee, “a nonparty...to
produce documents and tangible things or to permit ...