eDiscovery

Planning For And Getting eDiscovery From Third Parties

Collecting third-party documents can be fraught, and without thinking ahead, you can unwittingly create needless challenges to getting data.

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Before I dive in this week, I’m asking for a moment of quiet remembrance. On December 1st, our country lost a bright light in the judiciary — United States Magistrate Judge Craig Shaffer.

Judge Shaffer was a gifted judge, mentor, teacher, author, devoted father, and friend. His work with the Sedona Conference will live on, and his personal gifts to me of wisdom, insight, and mentorship are ones I hope to pass on to not just legal professionals, but all those who seek what is right with the world. His best lessons were to always engage with common sense, show kindness and conduct thoughtful analysis. While you may not have known him, his efforts during the course of his storied career have impacted you. Ken Withers of the Sedona Conference wrote a wonderful piece on the Judge here.

Judge Shaffer would have applauded my topic this week — as it fit right in with what he always advocated: planning and preparing, and balancing what is needed with the toll it takes to get it.

Gathering documents from third parties is a regular part of litigation, mediation, and arbitration. But it can be fraught, and without thinking ahead, you can unwittingly create needless challenges to getting data. A search for third-party subpoena cases in eDiscovery Assistant found 725 discovery decisions with 105 in 2018 ALONE. This is a big issue folks, and one you are spending way too much money on by not planning and cooperating up front.

So what should you plan in advance? We’ll approach this from the perspective of the requesting party, but this list applies to the responding party as well. Negotiating these pieces up front will save your client money and cut out the ediscovery fire drill.

  1. Whether you anticipate needing third-party data at all.  Do you need it?  From who or what entities?  What are the obstacles to getting it? Who do you need to talk to? Are there regulations or laws that will limit what you can get?  We’ve run into bank regulations, HIPAA and other considerations that made even getting to a conversation about data hard. Consider those in advance or they’ll add months to your process.
  2. Are there any issues to issuing subpoenas to the parties you have in mind?  Many times clients have ongoing relationships with the third parties. They may be suppliers, consultants, friends, board members, former employees, existing contractors, ex-husbands, etc. Find out about those relationships and talk to your client about what steps to take to preserve those relationships. Walk the line between getting what you need and maintaining status quo. Nobody likes it when the lawyers march in demanding stuff and the ripple effect can be a disaster. Young associates, heed my warning. One of the rights of passage in practice is screwing something like this up. Relationships are everything, and you do not want to mess up your client’s relationships for the benefit of their litigation. That is a decision for your client to make. And don’t skip this step because you have an arbitrary deadline to make either. Take the hit on not meeting it and get it right. In the end, that’s what matters. Many times, our clients have their in-house legal department make a connection for us with the legal department at the subpoenaed party so we can leverage the relationship to a productive end.
  3. When do you need it?  In a recent matter, having the third party data early in the case was the desire, but a series of unfortunate events delayed getting data for almost 6 months. The delay affected our ability to review and use the third party data as effectively as could have been done with more time in advance of depositions. Think about your timeline now instead of waiting.
  4. What do you need?  Rule 45 will work to limit the scope of your subpoena to relevant information that is proportional to the needs of your case, using the same factors from Rule 26. Make sure you are asking for what you really need. Consider working together with third party counsel to narrow the scope of the subpoena by dates or a fixed list of custodians. You can also agree to accept a sampling of custodians at the outset to review and then consider broadening the reach. Collection is not as expensive or time-consuming as review and production, so you may agree that a broader set of data is collected and then agree on a sampling protocol. Keep in mind that your date range can vary by custodian, depending on the dates of that individual’s involvement with the subject of the case. If you don’t have enough information, come up with the list of questions you need to help you make those decisions, and have a call with counsel for the subpoened party to discuss them. Tell them you want to provide a constructive scope. Doesn’t hurt to try.
  5. Talk to your client about the third party. Know and understand exactly what the third party has, who the custodians are likely to be, and fill in as much as possible about date ranges for custodians. Have your witnesses look at emails to see when someone started on the project. Use the data you have to tell you about the data you want.
  6. Draft your ESI protocol to cover third parties. We send a copy of the protocol with the subpoena. The protocol includes all of the details about the form of production, how to handle the privilege log, any range of preservation or production, and other crucial pieces including specific sources of ESI and how they’ll be handled, an FRE 502(d) order and more. Make a provision for third parties to sign the protocol. You’ll save the time of negotiating separately. Like Rule 26, form of production is a “you snooze, you lose” proposition. You can request a form, but if you don’t, and they produce in a reasonably acceptable form, you won’t get a second bite at the apple.
  7. Determine who will provide a copy of the data to the opposing party. The ideal scenario is that the producing party makes data available via link to a secured site that both parties can access and download. The days of sending encrypted (or unencrypted, you know who you are) hard drives around the country should be over. But the reality is that large quantities of data can take significant amounts of time to upload and download, so sometimes, those drives are our only option. In that case, negotiate for both parties to get a copy so you are not in a position to have to make a copy for production to the other side. Note you may have to cover costs here, so easiest is best.
  8. Pay attention to the timing for objections. Rule 45(d)(2)(B) requires a party to object within the earlier of the date for compliance or 14 days after service. Responding parties beware: If you blow the date for objecting, you will have a harder time narrowing the scope of what you have to produce under a subpoena.

Each case will have its own unique issues with regard to third-party data, so sit down and think through yours. The list above is a good start to identifying issues — feel free to drop me a line if you have something to add.

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Third party subpoenas can be a huge source of valuable data, particularly with the ever-increasing use of mobile devices as data sources. Your early discovery strategy needs to consider this aspect and plan intelligently for it.

You’ll thank me later.

Kelly TwiggerKelly Twigger gave up the golden handcuffs of her Biglaw partnership to start ESI Attorneys, an eDiscovery and information law Firm, in 2009. She is passionate about teaching lawyers and legal professionals how to think about and use ESI to win, and does so regularly for her clients. The Wisconsin State Bar named Kelly a Legal Innovator in 2014 for her development of eDiscovery Assistant— an online research and eDiscovery playbook for lawyers and legal professionals. When she’s not thinking, writing or talking about ESI, Kelly is wandering in the mountains of Colorado, or watching Kentucky basketball. You can reach her by email at Kelly@ediscoveryassistant.com or on Twitter: @kellytwigger.

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