Fed.R.Civ.P. 34(a)(1)(A) allows a party to serve on any other party a request for relevant electronically stored information in the “responding party's possession, custody, or control.” Only one of these requirements need be met. Soto v. City of Concord, 162 F.R.D. 603, 619 (N.D.Cal.1995). Legal ownership over the electronically stored information is not determinative, nor is possession necessary if the party has custody or control over the items. Id.
Further, “[c]ontrol is defined as the legal right to obtain documents upon demand.” United States v. Int'l Union of Petroleum & Indus. Workers, 870 F.2d 1450, 1452 (9th Cir.1989). Documents may be within the “custody” or “control” of a party even thought they are in the possession of nonparties. See
Gen. Envt'l Science Corp. v. Horsfall, 136 F.R.D. 130, 133-34 (N.D.Ohio 1991). A legal right is evaluated in light of the facts of each case, but central to each case is the relationship between the person having actual possession of the document and the party or the transaction at issue. See
Estate of Young v. Holmes, 134 F.R.D. 291, 294 (D.Nev.1991); see also
Uniden America Corp. v. Ericsson, Inc., 181 F.R.D. 302, 306 (M.D.N.C.1998); Japan Halon Co. v. Great Lakes Chem. Corp., 155 F.R.D. 626, 628-29 (N.D.Ind.1993). A legal right to obtain upon demand electronic information can also be established by the existence of a principal-agent relationship. See, e.g., Thomas v. Hickman,
2007 U.S. Dist. LEXIS 95796, -39 (E.D.Cal. Dec. 6, 2007) (“ ‘Control’ may be established by the existence of a principal-agent relationship”); see also
Gray v. Faulkner, 148 F.R.D. 220, 223 (N.D.Ind.1992) (holding that a party “is under an affirmative duty to seek information reasonably available to [it] from [its] employees, agents, or others subject to [its] control”). The party seeking production bears the burden of proving that the opposing party has control. Int'l Union, 870 F.2d at 1452.