E-Discovery: Subpoenas and Non-Party Production Issues

Legal Compliance Resource
June 21, 2013 — 1,121 views  

We are currently inundated with information that is electronically stored or ESI, to the extent that ESI dominates lawsuit discovery. The real challenge in face of increasingly outsourced data storage is e-discovery issues. It requires agility on the part of the counsel and their litigating party to follow the ESI trail.

Preserving ESI

It is critical to understand that a party cannot be sued for destroying evidence, if it was not bound by a duty to preserve it. In other words, it is important to understand legal issues in context of ESI. Generally, a party can be convicted for destruction of evidence, only if it can be proved that the party should have been aware that the material in question was relevant in context of the litigation. 

If the party is aware that the evidence in question relates to litigation, currently or in the future, it becomes their duty to preserve ESI. It is also important that material evidence be preserved before the litigation, based on the knowledge or understanding that they may be required in future litigation which is “likely”, “probable”, or can be reasonably “anticipated”.

It needs to be stated in context of data storage issues that cloud computing is significantly impacting the traditional storage model of e-discovery. So, ESI for e-discovery need not be supported on an individual computer or on a company’s internal server. In other words, the technology has legal implications since the responsibility to store and preserve data depends on third party providers.

Rules for ESI

The new rules promulgated by the FTC have made several changes in the treatment of ESI. Section 2.4 concerns investigation policy of FTC which is like Rule 1 of Civil Procedure. Both of them emphasize speedy and fair resolution as well as cooperation in context of investigations. This also applies to e-discovery now.

Section 2.7 is in context of production of tangible evidences such as electronic media or documentary material for sampling, testing, copying, or inspection. It also explains the form and manner in which ESI is required to be produced. This is explicitly stated in paragraph (j) and is similar to the civil proceeding rule. 

According to Section 2.7(k) of the FTC, the filing of a petition to limit or to quash must precede a conference or a meeting. Additionally, if the respondent is interested in discussing an issue related to ESI, a knowledgeable person who is familiar with the methods and systems of retrieval of the ESI system has to be present for the meeting.

Section 2.11 pertains to privileged information and how they are to be protected. Issues like maintenance of privilege log as well as meet and confer session are detailed under several paragraphs of this section.

It is evident that with changing technologies related to ESI and e-discovery the impact is being felt in litigations. Cloud computing technology has also changed the rules of the game with the consequence that the responsibility to store data has shifted to the third party. So, changes in rules pertaining to electronic record keeping are also being initiated.

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