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BSA 2023 § 136 — Production of documents or electronic records which another person could refuse to produce

§ SECTION 136 · BSA 2023 · CHAPTER IX — OF WITNESSES

Production of documents or electronic records which another person, having possession, could refuse to produce

The protection passes to the holder. No one can be compelled to produce a document he possesses, or an electronic record he controls, that another person would be entitled to refuse to produce — unless that other person consents.

How to read Section 136

If you hold a document or record that someone else could have refused to produce, you cannot be forced to produce it either — only their consent lifts the protection.

The holder

You hold a document (in your possession) or an electronic record (under your control) that carries another’s protection.

The borrowed right

If that other person could refuse to produce it were it in his hands, you cannot be compelled to produce it either.

The only key

Unless that person consents to its production.

The bare Act

The section in its own words — a single rule: a borrowed protection, lifted only by consent.

Section 136 · verbatim

No one shall be compelled to produce documents in his possession or electronic records under his control, which any other person would be entitled to refuse to produce if they were in his possession or control, unless such last-mentioned person consents to their production.

In short: If another person would be entitled to refuse production were the document in that person’s possession, or the electronic record under that person’s control, a custodian cannot be compelled to produce it without that person’s consent. Establish the underlying entitlement first. Electronic records were already expressly included in amended IEA section 131.

The electronic-record wording dates to the 2000 amendment; BSA section 136 carries it forward.

Glossary

documents in his possession

Papers physically held by the person summoned.

electronic records under his control

Digital records under the person’s control. This expression was already present in the amended IEA section 131.

any other person… entitled to refuse

A third party with a right to withhold the item.

if they were in his possession or control

The test: could the third party have refused, had he held it?

such last-mentioned person

That third party — the one with the right to refuse.

consents to their production

The third party’s permission — the only thing that lifts the protection.

The picture

First establish the other person’s entitlement to refuse; then apply the custodian’s derivative protection.

Section 136: protection in another person’s handsSection 136: protection in another person’s handsCUSTODIANHolds the document orcontrols the electronicrecord.OTHER PERSONWould be entitled to refuseproduction if the item werein that person’s hands.CONSENTThe section requires thatentitled person’s consent forproduction.Electronic records were already included in amended IEA section 131; this is not a new BSAaddition.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

borrowed shieldThe holder inherits the third party’s right to refuse

In one lineIf a document or record is one that another person could refuse to produce, the person who merely holds it cannot be compelled to produce it either.
Section 136: protection in another person’s handsSection 136: protection in another person’s handsCUSTODIANHolds the document orcontrols the electronicrecord.OTHER PERSONWould be entitled to refuseproduction if the item werein that person’s hands.CONSENTThe section requires thatentitled person’s consent forproduction.Electronic records were already included in amended IEA section 131; this is not a new BSAaddition.
No one shall be compelled to produce documents in his possession or electronic records under his control,no compulsion on the holder…whoever possesses the document or controls the electronic record…
which any other person would be entitled to refuse to produce if they were in his possession or control,→ where a third party could have refused…is protected to the same extent that the other person could have refused, had it been in his hands.
ExampleA’s banker holds A’s title-deeds. Since A (a non-party) could refuse to produce them under § 135, the banker who merely holds them cannot be compelled to produce them either.
✗ Not thisThe question is not whether the holder has a privilege — it is whether the third party could have refused. The holder simply borrows that right; he cannot be used as a back-door around it.

consent & e-recordsOnly the owner’s consent lifts it — and it now covers digital records

In one lineThe person entitled to refuse production must consent before this derivative protection is lifted. The rule already covered electronic records under amended IEA section 131.
Section 136: protection in another person’s handsSection 136: protection in another person’s handsCUSTODIANHolds the document orcontrols the electronicrecord.OTHER PERSONWould be entitled to refuseproduction if the item werein that person’s hands.CONSENTThe section requires thatentitled person’s consent forproduction.Electronic records were already included in amended IEA section 131; this is not a new BSAaddition.
unless such last-mentioned person consents to their production.MeaningThe relevant consent is that of the person entitled to refuse production—not simply anyone described as the owner. First establish the underlying protection.
ExampleIf A consents, his banker may then be compelled to produce A’s deeds. The same logic applies to a cloud file or database a custodian controls on another’s behalf — an electronic record under his control.
✗ Not thisThe holder cannot waive the protection on the owner’s behalf. Absent the owner’s consent, neither the holder’s agreement nor a mere summons can force production.

Connected provisions

§ 135 · back

Production of title-deeds

A non-party’s own protection — § 136 extends the same shield to whoever holds such documents.

§ 137 · next

Witness not excused on self-incrimination

A witness must answer even if the answer would criminate him — but the compelled answer earns use immunity (except false evidence).

Chapter IX

Of Witnesses

Competency, and the privileges that limit disclosure and production — see the chapter map.

lineage

IEA 1872, § 131, as amended in 2000

Documents in possession and electronic records under control were both covered in the amended former provision.

Sources and reading note

Compare IEA section 131 and its 2000 amendment footnote with BSA section 136.

Explanatory corrections reviewed on 24 September 2026. Statutory quotation and commentary are kept separate.