On May 20, 2025, Justice Reed of the New York County Commercial Division issued a decision in Trump v. Trump, 2025 NY Slip Op. 25118, explaining the requirements of a Jackson affidavit:
During discovery, a party is only required to produce those items that are within the possession, custody or control of the party served, which, under certain circumstances, can also mean constructive possession — the right, authority, or practical ability to obtain the documents or information sought. Courts have interpreted possession, custody or control to mean constructive possession, which does not require that the party have legal ownership or actual physical possession of the documents at issue. Rather, documents are considered under a party’s control when that party has the right, authority, or practical ability to obtain the documents from a non-party to the action.
Generally, if either party represents that he or she has no possession, custody or control of responsive information — after an exhaustive search for such information — then an affidavit, compliant with Jackson v City of New York, should be produced. The affidavit should provide a basis to establish where the subject records are likely to be kept, what efforts, if any, have been made to preserve them, whether such records are routinely destroyed, and whether a search has been conducted in every location where the records are likely to be found. The affidavit should set forth facts demonstrating that the search for records was thorough and conducted in good faith.
(Internal quotations and citations omitted).