Who Has "Possession and Control" of Data When Hosted by an eDiscovery Vendor

The case of Alban v. Bank of Am. Corp., 2014 WL 6704293 (N.D. Ill. Nov. 24, 2014) concerned the issue of who has “possession and control” of potentially relevant evidence when the shared data is hosted with an ediscovery vendor.
It would seem at first blush that if a party had access to shared hosted data, they would have the necessary “possession and control” of it. However, the devil is always in the details.
In this case, the vendor continued to store potentially relevant third party data from a settled case that Plaintiff had shared access to at one time. The court held that since counsel no longer had online access to shared data on the server, it had no legal right to it. The court noted that the moving party should have just demanded the data from the vendor by a “third party subpoena.”
This case is instructive in that any time shared data is hosted with a vendor during discovery, the life cycle of the that data should be properly protected by adequate contractual safeguards among the parties and the vendor.