§ 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: a protection against production follows the document, not the person. If a document (or, now, an electronic record) is such that another person would be entitled to refuse to produce it were it in his hands, then whoever actually holds it cannot be compelled to produce it instead. In other words, the holder inherits the third party’s right to refuse — a party cannot get around a privilege simply by summoning the custodian who happens to hold the paper. The protection lifts in one way only: where that third party consents to the production. Note the BSA’s modernisation — the old rule spoke only of documents in possession; this section now expressly covers electronic records under his control, so digital records held for another are protected in the same way. Typical cases: a lawyer or banker holding a client’s title-deeds, or an agent holding his principal’s protected papers.

→ This carries forward IEA 1872 § 131 — now extended to electronic records under one’s control.

Glossary

documents in his possession

Papers physically held by the person summoned.

electronic records under his control

Digital records he controls — the BSA’s express addition.

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

The protection travels with the document into the holder’s hands — and only the third party’s consent can release it.

The section, part by part

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

The borrowed shieldConsent & e-records

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.

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 protection is lifted only if the third party consents; and the BSA extends the rule from documents to electronic records under one’s control.

unless such last-mentioned person consents to their production.the one key: the owner’s consentonly the third party’s consent — not the holder’s willingness, nor the court’s wish — releases the document for production.

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

IEA 1872, § 131

Carried forward — now extended to electronic records under one’s control.

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