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Sharpen your discovery from nonparties: the December 2006 rules changes affect your electronic discovery from nonparties as well as parties - and how you deal with nonparties may be more important than you think.

Article Excerpt
Plaintiff lawyers conducting electronic discovery understandably focus on digital information stored by the defendant. But in many cases, important electronic evidence can be found in the possession of nonparties--and the new e-discovery rules affect how you deal with nonparties as well as your opponent.

For example, you may need electronic information from a nonparty in an intellectual property case in which you want to prove that the defendant was using your client's invention without obtaining a license. You might need to collect information from someone to whom your client sold a license (whom you do not want to sue) to prove that the defendant never received a license to use an invention from that third party.

Or, in a premises liability case, if the plaintiff slipped and fell in a grocery store and you need surveillance videos--which often are created and stored digitally--from that store's outside security company, you will need to subpoena them.

Some of the changes intended to streamline electronic discovery for parties generally are incorporated in whole in Rule 45--the rule that governs how nonparties must respond to subpoenas. (1) For example, Rule 34(b) (ii) and (iii), which address the form in which documents should be produced by parties, were copied almost verbatim into Rule 45(d) (1) (B) and (C).

These changes give the nonparty the option to produce electronically stored information in the form in which the nonparty ordinarily maintains it or "in a form or forms that are reasonably usable," provided you have not specified the form of production. The question is: What is reasonably usable? Moreover, what happens if you have specified the format and the nonparty believes producing the information in that format will be onerous?

You must understand the meaning of "undue burden" and the factors to be used in cost-shifting, so that you can address a stock objection that a request is "unduly burdensome and vague" and prevent discovery costs from being shifted to your client.

Meet and confer

Attorneys may not realize that, since the rules changed, nonparties have been held to similar data-preservation standards as parties. You may need to inform the nonparty early that a lawsuit has been filed and that it needs to suspend document destruction.

The meet-and-confer requirement is perhaps the amendment that the courts stress most. Because courts treat nonparties with deference, this requirement is even more important when nonparties are concerned. Rather than surprising a nonparty and its attorney with an onerous subpoena, you must meet with them beforehand to discuss the form of production and ways of minimizing cost.

If you do not know what you want or how you want it, consult with an expert before asking. Otherwise, you might receive electronic information in a format that the nonparty believes is reasonably usable but you find exceptionally difficult to read. You might also find yourself without the information you need if you impose an undue burden on a nonparty--especially if that burden is not simply based on cost.

In a situation involving potentially massive amounts of electronic information, carefully tailored sampling can help both you and the nonparty target of your subpoena. In sampling, you and your expert meet with the nonparty's attorney and its information technology expert and choose a few key custodians and some proposed search terms. The nonparty performs the sampling; reviews the material for relevance, privilege, and confidential information; and then produces it.

This will help you determine what costs may be involved in producing the information you need, and you can craft the subpoena more carefully. (2) If problems arise regarding the format of the material, you can work them out before they become too big. While sampling may seem time-consuming, it will save time, aggravation, and expense in the long run....

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