UNITED STATES DISTRICT COURT, SOUTHERN DISTRICT OF NEW YORK
October 4, 1979
UNITED STATES OF AMERICA, Plaintiff, against INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant.
The opinion of the court was delivered by: EDELSTEIN
MEMORANDUM AND ORDER
On September 17, 1979 plaintiff United States of America served a trial subpoena on Erich Bloch commanding Bloch, who is an employee of defendant International Business Machines Corporation and scheduled to testify on its behalf, to produce specified IBM documents. Bloch and IBM have moved to quash the subpoena.
Bloch and IBM argue Inter alia that to the extent the subpoena requires a search beyond Bloch's "own files" it must be quashed. Because Bloch is neither an officer nor a director of IBM, he is said to have possession and control only over documents maintained in his own files.
A rule 45 subpoena, as well as a rule 34 document request, may reach only those documents within the possession, custody Or control of the subpoenaed person. See 5A Moore's Federal Practice, P 45.05(2) at 45-32 n.6a (1979). The question here is one of "control," not "possession."
That documents demanded by the government may reside in files other than Bloch's is beside the point if Bloch has control over such files. See, e.g., In Re Folding Carton Antitrust Litigation, 76 F.R.D. 420, 423 (N.D.Ill.1977) (rule 34 document request) ("The test is whether the party has a legal right to control . . . ."); Bifferato v. States Marine Corp., 11 F.R.D. 44, 46 (S.D.N.Y.1951) (rule 34 document request) ("The true test is control and not possession"); Bough v. Lee, 29 F. Supp. 498, 501 (S.D.N.Y.1939) (subpoena) ("Control, not mere possession, is the determining factor").
Bloch is Vice President of IBM's Data Systems Division and General Manager of IBM's East Fishkill, New York manufacturing plant. It is unreasonable to believe that in the exercise of his duties Bloch has no control over files other than his own. Indeed, he has submitted no affidavit setting forth facts and circumstances which establish that the documents requested are not in his control.
See Larson v. Tony's Investments, Inc., 46 F.R.D. 612, 615 (M.D.Ala.1969); 4A Moore's Federal Practice, P 34.17 (1978).
The court has considered the remaining arguments advanced by Bloch and IBM and finds them to be without merit. Plaintiff's subpoena is reasonably particularized and the documents sought bear a logical nexus to Bloch's expected direct testimony. The burden of production to be imposed
is not unreasonable and oppressive. Motion denied.