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Raas Brothers Inc. v. Rass, 2019 UT App 183, 454 P.3d 83 (Nov. 15, 2019)

Nov 15, 2019

In this appeal from the imposition of discovery sanctions, the court of appeals addressed whether documents the plaintiff had submitted to the federal Small Business Association were within the plaintiff’s custody and control.  Although the holding was based on the particular facts of the case, including the plaintiff’s refusal to request the documents after being asked by the defendant and informed that the SBA could not release complete copies absent such a request, the court provided guidance on the ‘possession and control” component of Rule 35.  It explained, “Especially in today’s world of cloud-based server storage, a party need not have a document in its actual physical possession in order for the document to be deemed within the party’s control.”  The court referenced a case from the Territory of Utah, a footnote from a Utah Court of Appeals decision, and federal cases that indicate a document is in a party’s possession and control if the party has the legal right to it and could obtain it through a request.