Case Details


Is Proper Source Of Discovery From State Agencies, Not Attorney General, Third Party Subpoena

Filing State



U.S. District Court for the Southern District of New York




United States et al. v. American Express Co., No. 10-CV-04496 (S.D.N.Y. July 29, 2011)


The magistrate judge held that state attorneys general were not the proper party from whom to obtain state agency discovery. Third party subpoenas were the proper way to obtain such discovery, since the information was not under the custody or control of the attorneys general.

Case Description

After the U.S. Department of Justice and a number of states sued American Express, alleging anticompetitive acts, Amex sought party discovery from a wide variety of state agencies. The states objected, arguing that 1) state agencies are not plaintiffs for purposes of discovery, since the states are not seeking damages; and 2) the states do not have possession, custody or control over the documents sought, so they should be obtained through third-party subpoenas. Characterizing the dual nature of state governments as “purposeful,” the magistrate judge found that the state agencies are neither subject to common control nor interrelated with the Attorney General. Amex argued that the Attorneys General are compelled in some cases to represent state agencies in litigation. But the magistrate judge found that “the decision to pursue an enforcement action against Amex was one of policy, made independently of the State Governors and state agencies.” With respect to whether the Attorney General had custody or control of the documents. he court stated, “To find that the State Attorneys General have control over the documents in possession of state agencies that operate wholly independently of the State Attorneys General would be giving the Governors’ Office and state agencies a “virtual veto” over the policy decision to bring an enforcement action that rightfully lies with the State Attorneys General.” The court compared the Attorneys General to a law firm representing a client, and noted that the law firm would “strenuously object” if when they brought a case on behalf of one client, their opponent sought documents from another client, or from the law firm itself, as party discovery.