Plan participants sought production of electronic pension plan records from the defendant employer, who maintained it could not produce the data because it was in the possession of a third-party plan record-keeper. Magistrate Hegarty, sitting in teh District of Colorado, held that the data was in the defendant’s possession, custody or control within the meaning of Rule 26 and ordered production. “When an employer chooses to use electronic means by which to maintain and retain the records required pursuant to ERISA Section 209” the court found, “the employer has the duty to ensure that the standards advanced in Section 2520.107-1(b) are met.” See Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D.Colo. 2007).
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