Opinion
Civil No. 99-1255-KJ
October 30, 2000
Brian J. Dobie, Portland, Oregon, Attorney for Plaintiff.
Kerry J. Shepherd, Portland, Oregon, Richard M. Clinton, Seattle, Washington, Michael D. Hepp, Wichita, KS, Attorneys for Defendants.
ORDER
Before the court is defendant Elanex Pharmaceuticals' Motion to Compel Production of Telephone Records by Kathy Hird Wright, Raptor, Inc., and Roger Thomas (#37).
Elanex informs me that after the motion was filed, Raptor and Thomas both produced all records in their possession, thus mooting those portions of the motion.
At her deposition, Wright produced a limited number of telephone records which she still had in her possession. Elanex's attorney asked her to access the records through the telephone company's web site and produce copies to him. She does not wish to do so.
Wright is under no obligation to produce records which she does not have in her possession. I do not interpret Rule 34, which requires production of documents "which are in the possession, custody or control of the party," to oblige a party to retrieve copies of records which are in the possession of a third party. The fact that Wright could obtain additional copies is not the issue, she has no obligation to do so.
Defendant Elanex Pharmaceuticals' Motion to Compel Production of Telephone Records by Kathy Hird Wright, Raptor, Inc., and Roger Thomas (#37) is denied.
IT IS SO ORDERED.