(concurring in part, dissenting in part).
I dissent from the court’s affirmance of the order which required Hart to produce the records of Arctic Bowl, Inc. My disagreement centers on the majority’s holding that Hart had control over the records of Arctic Bowl, Inc.
A prerequisite to a Civil Rule 34 order for the production and inspection is that *120the moving party show the documents are in the “possession, custody, and control” of the other party. Norman v. Young, 422 F.2d 470 (10th Cir. 1970). I find the record devoid of any factual basis for the majority’s conclusion that Wolff made out a prima facie case of Hart’s “possession, custody, or control” of Arctic Bowl’s records. I cannot perceive any policy considerations, or precedential bases, for the majority’s adoption of an “influence” test, either actual or potential, in substitution for the “possession, custody, or control” standards of Civil Rule 34. Nor can I agree that notions of “influence” and of liberal pretrial discovery policies furnish an adequate foundation for the discovery order and subsequent sanction which were entered.
Apparently the trial court based its original order for production upon the theory that Hart’s counsel was the registered agent of Arctic Bowl, Inc. This appears clearly impermissible for it is established that Civil Rule 34 does not run against counsel for the party. Hickman v. Taylor, 329 U.S. 495, 67 S.Ct. 385, 91 L.Ed. 451 (1947). This is not to say that a party can immunize a document from inspection by turning it over to a nonparty so long as it remains in the party’s control. C. Wright and A. Miller, Federal Practice and Procedure, § 2208, at 616 (1970). But in the case at bar there is no evidence indicating that Hart’s counsel gained possession of the records by virtue of his representation of Hart.
One further comment. It strikes me as rather unusual that Wolff’s battery of attorneys took approximately five years to obtain a decision on the Civil Rule 34 motion to require Hart to produce the records of Arctic Bowl, Inc. Equally extraordinary is the fact that Wolff’s counsel never attempted to employ any other available discovery procedures, such as a subpoena duces tecum directed to a nonparty under Civil Rule 45(d) (1), to obtain the records of Arctic Bowl, Inc.
I agree with the court’s resolution of the attorney’s fee issue in this case.