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

Clark Hill PLC

“[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?

Please see full article below for more information.

LOADING PDF: If there are any problems, click here to download the file.

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.

© Clark Hill PLC | Attorney Advertising

Written by:

Clark Hill PLC

Clark Hill PLC on:

Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
- hide
- hide

This website uses cookies to improve user experience, track anonymous site usage, store authorization tokens and permit sharing on social media networks. By continuing to browse this website you accept the use of cookies. Click here to read more about how we use cookies.