Analyzing “Care, Custody or Control” for Preservation and Production of Electronically Stored Information

A party has an obligation under the Federal Rules of Civil Procedure to produce materials — including electronically stored information (“ESI”) — within their “care, custody or control.” Rule 34 of the Federal Rules construes this to mean either “the legal right” or “the actual ability” to obtain the materials; and New York courts have broadly interpreted this obligation to extend to documents and materials that a party has the “right, authority, or practical ability to obtain.” See In re NTL, Inc. Securities Litigation, 244 F.R.D. 179, 195 (S.D.N.Y. 2007).