The world runs on digital. Courts and litigators must understand how digitization can affect their cases. This past October, the Sedona Conference released updated analyses to help legal professionals navigate and adapt to the changes that have emerged from electronically stored information (ESI). To account for the ever-evolving digital world, the Sedona Conference posted several commentaries including one on evidence and admissibility with (ESI) and another on Rule 45 subpoenas to non-parties back in 2008. These two commentaries received second editions in October 2020 and reflected updated guidelines on these topics due to rule amendments and technological advancements. In little over a decade, the prevalence of ESI in trials has significantly increased due to the mounting digitization of information. Although most lawyers understand the basics of ESI and best practices relating to eDiscovery, there are knowledge gaps pertaining to the process for getting relevant ESI admitted into evidence, and potential subpoena issues arising when a non-party possesses ESI important to the case. Reviewing the new Sedona Conference commentaries can help litigators better understand these crucial case components and provide organizations with new practices for dealing with Rule 45 subpoenas.
Federal Rule of Civil Procedure 45 applies to issuing and responding to subpoenas seeking relevant information to a case. In today’s world, evidence will undoubtedly consist of ESI in possession of both parties and non-parties. Since there is more cloud computing, non-parties (like the companies hosting this data) hold more relevant ESI than ever before. However, litigators and courts have lacked proper guidance on how to properly handle non-party discovery and what companies are truly obligated to do when they hold relevant ESI but are not directly involved in a lawsuit.
In Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition, 22 Sedona Conf. J. 1 (forthcoming 2021), the Sedona Conference provided some tips on how to handle Rule 45 subpoenas for non-parties so as not to act unreasonable with information requests, which may impact the way non-party discovery requests are carried out going forward. The commentary includes the following:
After locating, collecting, reviewing, and disclosing ESI during a case’s investigation and discovery phases, the next stage requires evidence to be admissible for depositions, dispositive motions, and trial. Major cost concerns surface when parties expend significant ESI funds just to have the evidence excluded when it matters. The 2008 Sedona commentary began to address these concerns by providing litigators with a roadmap on ESI authentication and admissibility practice. However, the 2020 guidance delves deeper into these issues and addresses new data types, which is more reflective of modern litigation practice.
Here are a few key considerations for litigators and data holders that the Sedona Conference discussed in Commentary on ESI Evidence & Admissibility, Second Edition, 22 Sedona Conf. J. 83 (forthcoming 2021) when it comes to ESI and evidence:
The above highlights are a small sample of the 2020 Sedona commentaries on Rule 45 and ESI admissibility. Litigators facing these issues would be prudent to review each publication in their entirety to better develop strategies relating to digital evidence. These commentaries delve deep into applicable rules, case law, and best practices. Having a better handle on these processes will help lawyers master the Rule 45 subpoena process, avoid undue burden on non-parties, anticipate evidentiary needs, streamline authentication and admissibility, manage costs, and overall improve case outcomes.