Sedona Commentary on Non-Party Discovery
Today, the second edition of The Sedona Conference's Commentary on Rule 45 Subpoenas to Non-Parties was released. It's available here. Since the last edition was published in 2008, Federal Rules of Civil Procedure were revised in 2013 to make discovery from third parties easier. The revisions provide for the nationwide service of subpoenas, but subpoena recipients are only required to produce documents or ESI within 100 miles of their residence or place of employment.
Before issuing a subpoena, the Sedona Conference recommends that a threshold inquiry be conducted into whether or not a third party has possession, custody, or control of relevant ESI, and then determining what protections may be offered to a party. The Commentary specifically addresses common cloud storage arrangements that allow for a non-party to have possession of ESI, which a party has control over. "In such situations, the obligations and burdens to produce those documents and ESI, as well as the associated rights and protections regarding those documents and ESI, should be borne or exercised by the party to the litigation—rather than the non-party. Therefore, the request for documents and ESI should be made pursuant to Rule 34, not Rule 45, and directed to the party to the litigation in the first instance." Id. at 9-10.
While Federal Rule of Civil Procedure 37(e) allows for a party to be sanctioned for failing to preserve evidence, it does not apply to non-parties. Rule 45(g) provides for a sanction of contempt, usually resulting in a fine, for parties that fail to respond to a subpoena.
Rule 45(d) specifies that a party issuing a subpoena must take reasonable steps to avoid imposing an undue burden or expense on the non-party. The rule provides for cost shifting where significant expense is involved. This is mandatory when certain prerequisites are met and not within the court's discretion. A wider range of expenses are permitted for non-party discovery than for regular discovery. "Courts may allow non-party expenses to include printing costs and technology consulting fees as well as costs associated with collection, database creation, and, under certain circumstances, document review and privilege log preparation." Id. at 30. Attorney fees related to production may be included as necessary expenses, but those for litigating the subpoena will not be. Cost shifting may not be allowed if a non-party has benefited financially from a party.
Subpoenas may also be quashed pursuant to Rule 45(d) for imposing an undue burden; requiring the disclosure of privileged information; or failing to allow a reasonable time to comply.
The Commentary notes a six factor test used by many courts to determine if an undue burden has been imposed on a non-party:
1. The relevance of the requested information.
2. The requesting party's need for the ESI.
3. The scope of the request.
4. The time range of the request.
5. The particularity of the request.
6. The burden on the non-party.