Subpoenas to nonparties for ESI pose special problems

When parties to litigation need electronically stored information (ESI) that is in the hands of an outsider or third party, they enter the thorny realm of nonparty subpoenas and production issues. And when the case involves a large volume of ESI held by nonparties, it usually also involves large costs. 

For nonparties responding to subpoenas, this means spending time and money to produce documents for a matter in which they are disinterested.  Since a subpoena has the authority of a court order, the nonparty must respond or risk being held in contempt. 

Federal Rule of Civil Procedure 45 states:  "The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45…" The rule limits requiring nonparties that reside or work more than 100 miles to travel to attend trial if it would cause them to incur substantial expense.

Take immediate action
A nonparty should immediately assess the status of the ESI covered by the subpoena and institute a legal hold, just as if they were a party to the case. 

"I would treat a Rule 45 subpoena no differently than any other request to identify, collect, review and produce documents," said Michael Quartararo, director of litigation support services at Stroock & Stroock & Lavan in New York.

Rule 45 provides that in federal courts, parties have 14 days to serve objections to the subpoena.  The objections can challenge the sufficiency of the subpoena itself, the means of service, and the scope of the requested production.  State court rules on subpoenas differ from the federal rules.

Scope of production
After objections are served, all sides should negotiate the scope of production. If an agreement cannot be reached, as a last resort a court may have to resolve the matter.  Courts are usually sympathetic to the rights of nonparties and will not try to unduly burden them. 

"The key to responding to a subpoena for ESI is to understand that courts are very protective of the burden that overbroad subpoenas can put on third parties.  But to take advantage of that, you have to let the requesting party know early about the burden and attempt to negotiate reasonable limitations.  Except in extreme circumstances, the court is not going to let you off the hook just because the subpoena requests ESI," said Seth Row, of-counsel at Parsons Farnell and Grein in Portland, Ore.

"It is important to keep in mind," said Quarararo, "that discovery costs can be controlled by negotiating the scope of the ESI that needs to be collected and using widely available tools to search for, cull and filter the data so that only the truly responsive data is collected and reviewed."

Review
Nonparties should approach the situation as if they were parties to the case, maintaining metadata and reviewing it for responsiveness.  In some case there is a protective order in place, which requires a party to either perform or cease certain activities. The attorney should review it to ensure that it extends protections to nonparties and includes a clawback agreement covering inadvertent production or privileged material.   

Nonparties should also discuss the format of the documents they will be producing with the requesting party. The US rule of bearing one’s own costs usually applies for Rule 45 subpoenas, but cost-shifting can be ordered upon a showing of undue burden or overbroad request.  Cost-shifting is more likely when the burden would otherwise fall on nonparties.

The bottom line is to take great care in making sure clients, when they are a nonparty recipient of a Rule 45 subpoena for ESI, do not suffer the burden of paying an exorbitant amount to produce documents for a matter in which they are disinterested.