OPINION

RONALD ELLIS, Magistrate Judge

Before the Court is a motion by plaintiff USA Gateway Inc. ("USA Gateway") to compel the production of certain documents, and for discovery sanctions against defendants Spring Travel and Larissa Maltesva pursuant to Rule 37, Federal Rules of Civil Procedure. For the reasons which follow, the motion is DENIED.

I. BACKGROUND

In 2001, defendant Spring Travel, the business name used by defendant Larissa Maltesva, had ordered airline tickets for customers through USA Gateway, a wholesale ticket agency rated by the Airline Reporting Corporation ("ARC"). Memorandum of Law in Support of Plaintiff's Motion to Compel and for Sanctions ("Pl. Mem."), at 1. USA Gateway alleges that Spring Travel generally ordered tickets for individuals at an infant or child fare, which was substantially lower than a full adult fare. Id. Relying on the representation by Spring Travel, USA Gateway printed tickets based on the child/infant fare. Id.

USA Gateway alleges, however, that it was informed by various airlines that the tickets issued by Spring Travel had actually been used by adult passengers, and contained information which differed from that maintained by both USA Gateway and the ARC. Id. at 2. USA Gateway concluded that the original reservations had been changed by Spring Travel so that the passengers' tickets were no longer at the reduced child/infant fare price. Id. It claims that tickets issued by Spring Travel showed various alterations in the identification numbers and prices, with a digit generally being placed in front of the infant fare, i.e., $209 was transformed to $1209, or some other higher amount. Id. Spring Travel only paid USA Gateway the reduced fare amounts, and USA Gateway, as the ARC-rated agency, had to repay the airlines the differences in the fares. Id. USA Gateway calculates that the overcharges it had to pay totaled approximately $101,000. Id. In this action, USA Gateway seeks recovery against defendants under common law claims of fraud and unjust enrichment. Id.

On or about October 15, 2003, USA Gateway served its First Request for Production of Documents and First Set of Interrogatories on defendants. Declaration of Neal A. DeYoung, dated June 18, 2004 [attached to Notice of Motion] ("DeYoung Decl."), Exh. B. Defendants failed to produce the requested documents, and made no timely objections. Id. at 2-3. USA Gateway raised these failures at several conferences before the Court. Id. at 3. Defendants, for their part, had ongoing problems complying with USA Gateway's discovery requests. This included professed difficulty in compiling the data, lost and/or destroyed documents, and a change in counsel. After a number of intervening discussions, the dispute focused on two issues which form the basis of the instant motion: (1) whether defendants had produced all documents actually in their possessions and (2) whether defendants had taken appropriate steps to secure financial documents from their bank.

Defendants have maintained during the discovery period that they are a small operation, without a sophisticated record-keeping apparatus. In their formal response to USA Gateway's requests, they represented that, as of January 12, 2004, they had produced all documents in their possession regarding the subject of this suit. DeYoung Decl., Exh. C. USA Gateway contends that this was a misrepresentation because defendants produced additional documentation in response to this Court's order dated January 21, 2004. In addition, USA Gateway complains that while defendants indicated in their response to USA Gateway's interrogatories that they maintained "original records" for forty-four of the eighty-seven transactions at issue, at the time of the motion defendants had only produced records for thirty-seven transactions. Moreover, USA Gateway maintains that documents more recently produced by defendants appear to be fraudulent, and created to mislead the Court and plaintiff.

USA Gateway focused most of its submission on defendants' failure to produce financial documents from their bank. It argues that defendants have not fully discharged their obligations under Rule 34 because these relevant records are under their "custody or control." Specifically, USA gateway maintains that although defendants claim not to have original documents concerning the challenged transactions, relevant information would likely be contained in the credit card records related to those transactions. It points out that many of the payments to defendants must have been made by credit card, and therefore the credit card records in the bank's possession would reflect amounts paid by passengers. USA Gateway argues that such bank records are in the "custody or control" of defendants for purposes of Rule 34 because defendants have the legal right to them, and should have secured them in response to the discovery requests. It also asserts that it has unsuccessfully tried to obtain the records by subpoena.

In its motion, USA Gateway seeks an order compelling defendants to comply with its outstanding discovery requests, and produce (1) the files concerning the other fifty actions identified in the complaint filed in this action, and (2) all records of credit card and other payments received by defendants in connection with the eighty-seven ticket transactions. As a sanction for further failure to comply, USA Gateway seeks an order striking defendants' answer, or alternatively, an order establishing for purposes of this action that defendants received payments amounting to the full adult fares for each of the eighty-seven ticket transactions.

B. Defendants' Position

Defendants concede that they have only produced thirty-seven ticket transactions, and have not produced credit card records from their bank. On the first issue, they simply maintain that they have only been able to find thirty-seven records and they have produced all the records they could find. Steve Newman's Declaration in Opposition to Motion to Compel ("Newman Decl.") at 7, ¶ 44. Although counsel for defendants indicated in response to the instant motion that defendants would further review their files, no supplemental submission has been made to the Court. Id.

With respect to the credit card records, defendants argue that the documents are not in their possession, and that they have been unsuccessful in obtaining them from the appropriate financial institution. Specifically, counsel for defendants claims that plaintiff subpoenaed the wrong bank. He avers that there are two entities with the name "Compass Bank," one, a southwestern-based holding company, the other, a bank based in New England. Newman Decl. at 3, ¶¶ 17-18. Plaintiff's subpoena had been directed to the New England Bank, but defendants' transactions were handled by the southwestern company. Id. at ¶ 20.

On or about August 3, 2004, counsel for defendants confirmed that no records existed for defendants at the New England-based bank. Id. at ¶ 20. After determining that the New England-based bank was the incorrect bank, counsel spoke with a senior vice president at the southwestern-based bank, who confirmed that the bank had handled the account in question. Id. at ¶¶ 26-29. This bank official indicated, however, that the bank no longer handled the account, and retained no records related to it. Id. at ¶ 30. He further indicated that a company called IPayments had purchased the account from the bank as of January 2003. Id. at ¶ 31. Counsel averred that he was in the process of determining whether IPayments had a record of defendants' account transactions, but has not filed any supplemental information with the Court. Id. at ¶ 34.

II. DISCUSSION

A. Obligations under Rule 34

Rule 34 (a) of the Federal Rules of Civil Procedure provides that "any party" may request of "any other party" documents that are "in the possession, custody or control of the party upon whom the request is served." Under the Rule, a party has control of documents if it has the legal right to such documents, even if the documents are actually in the possession of a nonparty. 7 Moore's Federal Practice, 34.14[2][b] at 34-63 at 34-68 (1999); 8A Wright, Miller Marcus, Federal Practice and Procedure: Civil 2d § 2210, at 396-409 (1994). The parties appear to agree that defendants have the right to obtain the bank records concerning the credit card transactions, although defendants disagree that the records were under their control for purposes of the motion.

B. Applicability of Rule 37(a)

Federal Rule of Civil Procedure 37(a) provides that "[i]f a party fails to make a disclosure required by Rule 26(a)," or provides "an evasive or incomplete disclosure, answer or response," "any other party may move to compel disclosure and for appropriate sanctions." FED. R. CIV. P. 37(a)(2)(A), 37(a)(3). "If the motion is granted . . . the court shall . . . require the party or deponent whose conduct necessitated the motion or the party or attorney advising such conduct or both of them to pay to the moving party the reasonable expenses incurred in making the motion, including attorney's fees. . . ." FED. R. CIV. P. 37(a)(4)(A).

Pursuant to Rule 37, "if a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just." Fed.R.Civ.P. 37(b)(2); see Dimensional Sound, Inc. v. Rutgers University, 1996 WL 11244, at *3 (S.D.N.Y. Jan. 10, 1996) ("Rule 37 sanctions are intended to ensure that a party does not benefit from its failure to comply [with discovery]."). It is well settled that the court has broad discretion to determine the type of sanction to impose upon a party, based on all the facts of the case. Dimensional Sound, 1996 WL 11244, at *3. The rule authorizes a wide variety of sanctions, including declaring certain facts as established and preventing the offending party from introducing evidence on particular topics. Rule 37(b)(2)(B), FED. R. CIV. P. The discretion of the court is guided by relevant factors, which may include

1) the history of the failure to comply with court orders; 2) whether the party violating the order was given ample time to respond; 3) the effectiveness of alternative sanctions; 4) whether the noncomplying party was warned of and given an opportunity to argue against the impending sanction; 5) the prejudice to the adversary caused by the failure to comply; 6) whether the documents at issue would normally be readily obtainable; and 7) the extent of the party's personal responsibility.

The first issue is whether defendants have violated this Court's orders, and to what extent. As to the specific issues raised in the motion, I find that noncompliance has not been established. It is true that the production has been slow and protracted. There, however, is no independent evidence that defendants have more than the thirty-seven records already produced, or that they had more at the time of the request to produce. Given the history of discovery in this case, defendants' earlier statement that they had forty-four transactions can hardly be considered definitive.

With respect to the bank records, plaintiff presents no evidence to contradict the affidavit of Steve Newman that there was confusion on the correct identity of the bank. While plaintiff stresses the fact that defendants had a legal right to the bank records, it does not follow that sanctions are appropriate for their failure to secure such records. The situation would be different if the Court had ordered defendants to get the records from the bank. It is not unusual for a nonparty to have relevant records. Under those circumstances, the Court may decide upon the appropriate manner of obtaining the records. This may include use of subpoena by the asking party, the signing of a release by the responding party, or a direction to the responding party to retrieve the documents from the nonparty. In the absence of a prior order that retrieval by the responding party is a necessary and effective resolution, sanctions are not warranted.

The Court also notes that the core sanctions sought by plaintiff, namely, that it be established that defendants received payment of adult fares for all eighty-seven transactions at issue, appears to be unnecessary and potentially overreaching. If the proposition is not true, defendants will be burdened by an erroneous finding. On the other hand, if it is true, the sanction will flow practically from the current situation. For example, if plaintiff can establish that the records already in its possession show full fares, it should be entitled to an adverse the missing records. Indeed, even without such an instruction, the finder of fact would likely draw that conclusion. Similarly, to the extent that plaintiff alleges that defendants have fraudulently created records to mislead the Court, the thirty-seven records already in plaintiff's possession should be sufficient to establish that proposition. Indeed plaintiff asserts as much in its motion. See Affidavit of Linda Han, dated September 14, 2004 (attached to DeYoung Decl.).

III. CONCLUSION

There is not clear evidence that defendants 1) intentionally violated a court order; 2) have documents in their possession which they failed to provide plaintiff; 3) or should be sanctioned for failing to provide documents under their control. Plaintiff's motion for sanctions is DENIED. Defendants' counsel, however, has indicated that he had begun an investigation to find what, if any, records are available from the correct banking institution. Defendants' counsel shall submit an affidavit by January 10, 2005, updating his prior affidavit to reflect the results of 1) his inquiries on the existence of bank records pertaining to the eighty-seven transactions at issue in this case and 2) the search for additional records in the defendants' own files.

SO ORDERED.