eDiscovery: Subpoenas and Non-Party Production Issues THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES. THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE. THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL. 1
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eDiscovery: Subpoenas and Non-Party Production Issues · to Party Discovery, etc. • Under FRCP 45 and state law analogues, generally same rules apply, ... if such interests outweigh
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eDiscovery: Subpoenas and Non-Party
Production Issues
THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES.
THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE.
THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.
1
Agenda
• I. Introduction , including Comparison to Parties
• II. FRCP 45 Amended 12/1/13
• III. Some Key Considerations and Strategies - 5 W's + 1 H
• A. WHO •••
is a PARTY and thus subject to preserve/produce (and notice) duty?
• B. WHAT •••
is Social-Media & "The Cloud" case-law's current state?
2
Agenda
• III. Key Considerations (c't'dJ
• C. WHERE •••
are claw-back agreements to protect privilege highly advisable?
• D. WHY •••
are there different parameters at play in government inquiries?
• E. WHEN •••
should one address cost-allocation and other objections?
3
Agenda
• III. Key Considerations (c't'dJ
• F. HOW ...
does one address privacy, anonymity
and confidentiality?
• IV. Proactive Steps, especially
for Serial Subpoena Recipients
• CONCLUSION 4
I. Introduction - Comparison to Party Discovery, etc.
• Under FRCP 45 and state law analogues, generally same rules apply, e.g.:
• scope/relevance, including testing/ sampling [FRCP 45(a)(l)(D)]
• format(s) of production [45(d)(l)(B)-(C)]
• "not reasonably accessible" (NRA) •••
• .•• due to "undue burden or cost" so that:
~ cost-shifting might occur ••• [45(d)(l)(D)]
• privilege claw-back procedure [45(d)(2)(B)]
• But judges generally more receptive to non-parties' objections/ concerns 5
I. Intro - Comparison to Parties, etc. (c't'dJ
• Sometimes being treated like a party is a good thing. See, e.g • ...
• "[W]hile minimizing [the non-party's] burden and expense, the court looks to the pertinent portions of the Federal Circuit Advisory Council's Model Order on EDiscovery in Patent Cases. Although the model order is directed to discovery from parties, its objective of appropriately scaling the burden of electronic document production to its legitimate benefit would appear as or more applicable to electronic discovery from non-parties"
• In re Google Lit., 2011 WL 6113000 {N.D. Cal. 12/7 /11) 6
• B. Nationwide-Service and Compliance- Location Clarity
• Now "[a] subpoena may be served at any place within the United States," even though the compliance location must be tethered to the recipient's place of residence, work or business
• FRCP 45(b)(2)*
• FRCP 45(c)(1)-(2) * [ NEW subsection]
• No longer does one ever need to refer to state law - as to, e.g., compliance location
III. Some Key Considerations/ Strategies = 5 W's + 1 H
• INTRODUCTION - Gibbons' ''Best Practices''
• Requesting Party
• "Raise Potential Third-Party Discovery Issues at the
Federal Rule of Civ[.] Pro[.] 16 Conference"
• "Narrowly Tailor an ESI Request to a Nonparty"
• "Follow Up Promptly with a Nonparty"
• "Minimize a Nonparty's Burden
of Related Administrative Tasks"
• "Assume Some or All of the Costs
Associated with Production" 15
III. Some Keys - Intro (c't'dJ -
''Best Practices'' (c't'dJ
• Non-Party Subpoena Recipient:
• "Meet with Your IT Professionals and
Appropriate Administrative Personnel"
• "Confer with the Party Serving the Subpoena"
• "Raise Specific Objections"
• "Offer to Conduct a Sampling"
• "Request Cost Shifting"
16
III. Some Keys (c't'dJ
• A. WHO is part/parcel of a PARTY and thus encompassed by duty to produce and/ or convey preservation notice?
• ''Possession, custody or control'' per FRCP 26 and/ or FRCP 34
• See, e.g., Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D. Colo. 8/31/07) (compelling production - under FRCP 26 (a)(1)(B) - re: third-party ERISA record- keeping system)
• "By contrast, the failure to obtain records from ell all those employees (so111e of who111 111ay have had only a passing encounter with the issues in the litigation),. • • who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, liltel·t could constitutes negligence as opposed to a higher degree of culpability."
~ Pension Committee ("Zubulake Revisited") 685 F. Supp. 2d 456 (S.D.N.Y. 1/15/10) (as amended, including w./ clarification as to back-ups in new footnote 99), as corrected by Order, No. 05 Civ. 9016 1a
• Attempt to " disclose the results of an internal investigation to an investigating government agency without waiving attorney client privilege or work product protection as to the outside world"
• U.S. v. Berqonzi (McKesson), 403 F.3d 1048 (9th Cir. 4/1/05) (per curiam)
• Case law continues to be pretty
much universally negative. Examples:
• Gruss v. Zwirn, 296 F.R.D. 224 (S.D.N.Y. 11/20/13),
Retrieved messages or • Email - § 2703(d) court order wit h unretrieved messages older • Chats/ wall posts notice to customer than 180 days - Subpoena wit h not ice to
customer
- Search Warrant
Non-message hosted data • Contents of stored data - § 2703{d) court order wit h (files remotely stored) • Address books and calendars notice
• Stored Chat Logs Subpoena with notice to -customer
• Referring URLs /Outgoing URLs;
Transactional records • Site usage details - Search Warrant (non-content records) • Visitor details § 2703(d) court order -
• Message headers
• Name, address, telephone number, and - Search Warrant other identifying information - § 2703(d) court order
Basic customer subscriber and • Means and source of payment for the - Subpoena
session information service (including credit card/bank
account numbers) - Good faith reliance on legally
• Basic session connect ion records (e.g., IP invalid subpoena -faxed from
addresses recorded at login) other state - still afforded ISP
• Records of phone calls made/received immunity. Sam's v. Yahoo Inc. ,