The recent decision in RIG Consulting, Inc. v. Rogers, No. 2:23-cv-1286-RJC (W.D. Pa. May 8, 2025), offers a reminder of discovery obligations under Federal Rule 34. A party’s duty to produce documents extends to materials within its “possession, custody, or control” not just those it physically holds. In this case, Rogers, the defendant and former plaintiff (RIG) employee accused of trade secret violations, attempted to limit his document production to files he personally possessed. The court described Rogers’s focus on the “possession” aspect of Rule 34 as “an attempt at clever gamesmanship” emphasizing that Rogers “must produce responsive information that is in his possession, custody, or control.”  

Although Rogers had produced over 1,200 pages of text messages and related attachments, RIG argued in its motion to compel further discovery that key categories of responsive materials remained outstanding. Specifically, RIG highlighted the absence of Microsoft Teams messages and emails from Rogers’s work account (at his new employer) that related to RIG’s clients, customers, or employees. While Rogers acknowledged having “numerous communications” with these individuals after leaving RIG, he objected to the requests as overly broad and claimed he did not “possess” the requested materials.

The court was not persuaded, citing Rogers’s prior failure to comply with discovery orders and expressing skepticism about his credibility, particularly because he initially claimed to “possess” no responsive information but later produced hundreds of pages of texts.

U.S. District Court Judge Robert J. Colville found Rogers’s failure to attempt to locate and produce the requested communications “inexcusable.” He ordered production of responsive Microsoft Teams messages and work emails within 28 days, awarded RIG its fees and costs related to the motion, and warned that future noncompliance could result in more serious sanctions such as compelled turnover of devices.

The takeaway: Courts expect transparency, diligence, and good faith in discovery. Limiting discovery efforts or playing games with “control” invites judicial scrutiny and escalating consequences.