Non-Parties And Electronic Discovery: Limiting The Scope And Cost Of Responding To Invasive Rule 45 Subpoenas


“[D]iscovery is by definition invasive [and] parties to a law suit must accept its travails as a natural concomitant of modern civil litigation.” But “[n]on parties have a different set of expectations” and discovery aimed at them is “limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” Courts recognize that non-parties responding to Rule 45 subpoenas “are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of a litigation to which they are not a party.”

To balance the burden of discovery placed on non-parties, Rule 45 and Federal Courts empower non-parties to protect themselves from unduly burdensome and invasive discovery requests. Suppose a company receives a subpoena requesting production of “[a]ll electronically stored information and documents relating to or concerning the lawsuit from the time your company was founded to present, including but not limited to documents related to, or created by, the attached list of custodians,” supplemented by a several page-long definition of the word “document” and a list of one-hundred employees spanning several states or countries. How can a non-party proactively respond to Rule 45 subpoenas with relevant information while narrowing the scope of the request and minimizing the costs and burdens imposed? How can a non-party manage its own preservation and privacy obligations when collecting and producing responsive documents? And what actions can a non-party take to seek court intervention to modify or quash a subpoena and shift the costs of discovery to the parties seeking discovery?

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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