In an opinion today, Magistrate Judge Stein concluded that a party’s obligation to produce documents held by an attorney or other agent can require threat of termination as leverage to get an uncooperative agent to hand them over.
The discovery ruling arises out of Justin Sun’s suit against David Geffen over the sale of an Alberto Giacometti sculpture, Le Nez, which Sun claims was stolen and sold without his authorization by a nonparty, Sydney Xiong, whose current whereabouts are unknown. Central to Sun’s theory is a police report filed on his behalf in China—which Geffen contends is fabricated—by one Jeffrey Li, a “legal consultant” affiliated with the Shanghai Xi Zheng law firm. Geffen moved to compel production of Li’s own files relating to the report. Sun resisted, arguing Li was a nonparty in China over whom Sun had no real power: his counsel represented that “we have asked Li to produce materials” but “he declined,” and that all Sun could do was “ask.”
Judge Stein rejected that as a matter of law, holding that “control” imposes an affirmative obligation to use whatever practical influence the party actually has to obtain the documents:
To comply with the Court’s order, Sun must do more than merely “ask” Li to comply. Rather, Sun is obligated to assert his legal rights to the documents and exert whatever practical ability and influence he may have to access the documents, including, for example, by exercising any influence he may have based on his affiliation with the Xi Zheng law firm and by threatening, if necessary, to terminate his relationship with Li and/or the Xi Zheng law firm. Should he fail to produce the documents and fail to provide an adequate explanation as to why he was unable to obtain the documents despite making good faith and reasonable efforts to do so, Sun may be subject to sanctions under Fed. R. Civ. P. 37
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