While the question of whether specific records are within a party’s possession, custody or control has been heavily litigated for years, the digital revolution — with the advent of social media, cloud computing and mobile devices — has complicated the analysis. The answer to this important question has serious implications for almost all companies operating in the digital age.

The idea of control and who actually has it is still being clarified, but a fairly accepted definition looks at control as “the legal right, authority, or practical ability to obtain the materials sought on demand.” SEC v. Credit Bancorp, Ltd., 194 F.R.D. 469, 471 (S.D.N.Y. 2000). With that guidance, companies need to take a hard look at what material they may be found to have the right, authority, or practical ability to obtain, whether that is social media content, content stored in the cloud, or content from mobile or wearable devices.

Originally published in ACC Docket on May 21, 2015.