The case of the day is JK v. VKP (Sweden S. Ct. 2022). No, I do not generally keep track of the Swedish Supreme Court; I picked up on the case at the excellent EAPIL Blog. A daughter sought child support from her father. She sought an order requiring the father to produce Danish tax assessment notices he had received. He claimed he didn’t have them, but it was undisputed that he could obtain them by simply logging on to the Danish tax website. The question: did he have “possession” of the notices, such that he could be required to produce them?
For Americans, this is a no-brainer. We have a very well-developed body of law on pre-trial discovery, and we don’t focus just on possession, but on possession, custody, or control. An American court would almost certainly say that the father had possession of the notices, but in any event, it was clear that he at least had control of them, as he could easily obtain them and had a right to obtain them. The Swedish court followed a similar course, holding that for documents stored “on the internet,” which of course really means on a cloud server in some location or other, “possession” is established when a party has an unconditional right to access the document.
The court recognized that the question of where the documents are stored is irrelevant. The order to produce the document acts on the person subject to the order, not on the documents themselves. I love this bit, because it’s precisely how our law views the situation. The order to produce the documents operates in personam, not in rem.
Of course, there may be blocking statutes or other rules in the place where the information is kept that can affect the calculus about what the party should be ordered to do. This is precisely what our Aerospatiale case is about. But those rules are an overlay on the basic principle that when a party has the ability to produce documents, the location of the documents is not the relevant consideration.