eDiscovery: Subpoenas and Non-Party

Production Issues

THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL UNDERSTANDING OF CURRENT LAW AND PRACTICES.

THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE.

THOSE WITH PARTICULAR QUESTIONS SHOULD SEEK ADVICE OF COUNSEL.

1

Agenda

• I. Introduction , including Comparison to Parties

• II. FRCP 45 Amended 12/1/13

• III. Some Key Considerations and Strategies - 5 W's + 1 H

• A. WHO •••

is a PARTY and thus subject to preserve/produce (and notice) duty?

• B. WHAT •••

is Social-Media & "The Cloud" case-law's current state?

2

Agenda

• III. Key Considerations (c't'dJ

• C. WHERE •••

are claw-back agreements to protect privilege highly advisable?

• D. WHY •••

are there different parameters at play in government inquiries?

• E. WHEN •••

should one address cost-allocation and other objections?

3

Agenda

• III. Key Considerations (c't'dJ

• F. HOW ...

does one address privacy, anonymity

and confidentiality?

• IV. Proactive Steps, especially

for Serial Subpoena Recipients

• CONCLUSION 4

I. Introduction - Comparison to Party Discovery, etc.

• Under FRCP 45 and state law analogues, generally same rules apply, e.g.:

• scope/relevance, including testing/ sampling [FRCP 45(a)(l)(D)]

• format(s) of production [45(d)(l)(B)-(C)]

• "not reasonably accessible" (NRA) •••

• .•• due to "undue burden or cost" so that:

~ cost-shifting might occur ••• [45(d)(l)(D)]

• privilege claw-back procedure [45(d)(2)(B)]

• But judges generally more receptive to non-parties' objections/ concerns 5

I. Intro - Comparison to Parties, etc. (c't'dJ

• Sometimes being treated like a party is a good thing. See, e.g • ...

• "[W]hile minimizing [the non-party's] burden and expense, the court looks to the pertinent portions of the Federal Circuit Advisory Council's Model Order on E­Discovery in Patent Cases. Although the model order is directed to discovery from parties, its objective of appropriately scaling the burden of electronic document production to its legitimate benefit would appear as or more applicable to electronic discovery from non-parties"

• In re Google Lit., 2011 WL 6113000 {N.D. Cal. 12/7 /11) 6

I. Intro - Comparison to Parties, etc. (c't'dJ

• Sometimes being treated like a party is a mixed bag. See, e.g • ...

• Requesting party had "demonstrated 'good cause" (see

Fed. Rules Civ. Pro. rule 45[d][1][D]) necessitating a

cost/benefit analysis to determine whether the needs of the case warrant retrieval of the data" from non-party

subpoena recipient

• NY "CPLR 3111 and 3122(d) require the requesting party

to defray the 'reasonable production expenses' of a

nonparty[, .•. possibly] includ[ing] .•• the cost of disruption to ..• normal business operations"

• Tener v. Cremer, 89 A.D.3d 75, 931 N.Y.S.2d 552 (1 A.O. 9/22/11) 7

I. Introduction <c't'dJ -

Some Key Resources

• Applied Discovery, Duties Respecting Electronic

Evidence; Third Parties, Online Law Library (1 of many topic areas) (last visited 3/10/14)

• Sedona Conference® Commentary on Non-Party Production & Rule 45 Subpoenas, WGS (Apr. 2008)

• Mark S. Sidoti, Mara E. Zazzali-Hogan and Stephen J. Finley Jr., E-Discovery Under FRCP 45, ORI (May 2011) ("Gibbons") [URL to change?]

8

II. Fed. R. Civ. P. 45 Amended 12/1/13

• Jurisdictional/procedural differences, with

changes effective December 1, 2013

• CURRENT TEXT

• LOTS of resources re: FRCP 45 linked from:

• Brownstone, While You Are Gorging - FRCP 45 .••

Changes Take Effect 1211/13, IT Law Today (11/27/13)

• SOME highlights •••

9

II. New FRCP 45 as of 12/ 1/ 13 (c't'dJ

• A. Issuance of Subpoena from Court

Handling Underlying Case

• Now a subpoena not only can but "must

be issued from the court where the

action is pending" (emphasis added)

• FRCP 45(a)(2) [corrected URL]

• No longer must it issue from a court

located in the geographical area for

compliance 10

II. New FRCP 45 as of 12/ 1/ 13 (c't'dJ

• B. Nationwide-Service and Compliance- Location Clarity

• Now "[a] subpoena may be served at any place within the United States," even though the compliance location must be tethered to the recipient's place of residence, work or business

• FRCP 45(b)(2)*

• FRCP 45(c)(1)-(2) * [ NEW subsection]

• No longer does one ever need to refer to state law - as to, e.g., compliance location

* [corrected URL] 11

II. New FRCP 45 as of 12/ 1/ 13 (c't'dJ

• C. Forum for Subpoena-Related Motions/ Disputes - a Change but Some Flexibility

• Now, subpoena-related disputes typically to be resolved in district court in compliance location

• No longer does one have to bring such a motion before the issuing court

• But, ••• possibility of transfer of a pertinent motion to issuing court •••

• FRCP 45(d)(3) * ("Quashing or Modifying a Subpoena") [formerly (c)(3)]

• FRCP 45Cfl* ("Transferring a Subpoena­Related Motion") [NEW subsection]

* [corrected URL] 12

II. New FRCP 45 as of 12/ 1/ 13 (c't'dJ

• C. Subpoena-Related Motions (c't'dJ

• FRCP 45(f)* :

• "[T]he court where compliance is

required • • • may transfer a motion

.•• to the issuing court if the person

subject to the subpoena consents or

if the court finds exceptional

circumstances."

* [corrected URL] 13

II. New FRCP 45 as of 12/ 1/ 13 (c't'dJ

• C. Subpoena-Related Motions (c't'dJ

• Advisory Committee Note to FRCP 45(f) * :

• "In some circumstances ... transfer may be warranted in order

to avoid disrupting the issuing court's management of the

underlying litigation, as when that court has already ruled on

issues presented by the motion or the same issues are likely to

arise in discovery in many districts. Transfer is appropriate only

if such interests outweigh the interests of the nonparty served

with the subpoena in obtaining local resolution of the motion."

* [corrected URL]

14

III. Some Key Considerations/ Strategies = 5 W's + 1 H

• INTRODUCTION - Gibbons' ''Best Practices''

• Requesting Party

• "Raise Potential Third-Party Discovery Issues at the

Federal Rule of Civ[.] Pro[.] 16 Conference"

• "Narrowly Tailor an ESI Request to a Nonparty"

• "Follow Up Promptly with a Nonparty"

• "Minimize a Nonparty's Burden

of Related Administrative Tasks"

• "Assume Some or All of the Costs

Associated with Production" 15

III. Some Keys - Intro (c't'dJ -

''Best Practices'' (c't'dJ

• Non-Party Subpoena Recipient:

• "Meet with Your IT Professionals and

Appropriate Administrative Personnel"

• "Confer with the Party Serving the Subpoena"

• "Raise Specific Objections"

• "Offer to Conduct a Sampling"

• "Request Cost Shifting"

16

III. Some Keys (c't'dJ

• A. WHO is part/parcel of a PARTY and thus encompassed by duty to produce and/ or convey preservation notice?

• ''Possession, custody or control'' per FRCP 26 and/ or FRCP 34

• See, e.g., Tomlinson v. El Paso Corp., 245 F.R.D. 474 (D. Colo. 8/31/07) (compelling production - under FRCP 26 (a)(1)(B) - re: third-party ERISA record- keeping system)

17

III(A). WHO is a (Non-) Party (c't'dJ ••• ?

• Other Exs. - Former employees

• "By contrast, the failure to obtain records from ell all those employees (so111e of who111 111ay have had only a passing encounter with the issues in the litigation),. • • who had any involvement with the issues raised in the litigation or anticipated litigation, as opposed to just the key players, liltel·t could constitutes negligence as opposed to a higher degree of culpability."

~ Pension Committee ("Zubulake Revisited") 685 F. Supp. 2d 456 (S.D.N.Y. 1/15/10) (as amended, including w./ clarification as to back-ups in new footnote 99), as corrected by Order, No. 05 Civ. 9016 1a

(S.D.N.Y. 5/28/10)

III(A). WHO is a (Non-) Party (c't'dJ ••• ?

• Other Exs. <c't'dJ

• Temp workers and the like using company's information systems?

• For several case cites, see slide 14 here

• Outside directors?

• For some case cites, see slide 15 here

• Service provider, e.g. ad agency?

• Independent agent, e.g. title co.?

• Haskins v. First American Title, 2012 WL 5183908 (D. N.J. 10/18/12), as discussed in this article [corrected URL]

19

III(A). WHO is a (Non-) Party (c't'dJ ••• ?

• Other Exs. <c't'dJ

• Someone with whom contracted?

• Haskins (see slide 19 above)

• Nursing Home Pension Fund v. Oracle Corp., 254 F.R.D. 559

(N.D. Cal. 9/2/08), aff'd, 627 F.3d 376 (9th Cir. 11/16/10)

• Entity emerging or resulting from dissolution, bankruptcy or merger/ acquisition (M&A) ...

• For some cites to authorities, see slide 17 here 20

III. Key Issues <c't'dJ

B. Web 2.0 (UGC) & Cloud

• 1. Social-Media

• Now, a bigger universe of web activities [many via F&W clients©]

• Increasingly in use:

• w./in orgs. (wikis, SharePoint, etc.)

• on web on entity-sponsored sites/pages

• by employees on own personal pages

• More and more case-law ...

• See this Bibliography summarizing and linking to many decisions in contexts of employment, personal-injury, etc.) 21

(use Firefox or Chrome if you have viewing issues in IE)

III(B)(l). Social­Media (c't'dJ

• Practical Tips: • For individual Facebook pages,

ask person directly re: "the button" (a/k/a " Download Your Information").

• See, e.g., In re White Tail Oilfield Services, 2012 WL 4857777 (E.D. La. 10/11/12)

• Compare " Your Twitter Archive"

• "Not reasonably accessible"? NO!!

• Public tweets could last forever?!

• How Tweet It Is!: Library [of Congress 1 Acquires Entire Twitter Archive, Library of Congress Blog (4/14/10), as updated (1/4/13)

• Anonymous/Pseudonymous postings

• See Section III(F) below. 22

III. Key Issues <c't'dJ

B. Web 2.0 & Cloud

• 2. The Cloud

• Centralized vs. ad hoc in, e.g., Dropbox

• Sync schedules if you can [FRCP 37(e)], as to:

• active/ live data?

• backed-up data?

• Possession/ custody/ control?

• Severability?

• For some decisions, see slide 24-27 here

• See also 3/7114 law360 article [new URL] 23

III. Key Issues (c't'dJ

C. WHERE .•.

• ... are claw-back agreements to protect privilege highly advisable?

• Federal AND State Court

• Clawback procedure of FRCP

45(d)(2)(B) is not enough. Why?

24

llI(C). WHERE -Claw-Back <c't'dJ

• Pre-FRCP-Amendment Grimm Warnings:

• UNLESS IN SCHEDULING or PROTECTIVE ORDER, non-waiver stipulation (claw-back or quick peek) risky & maybe not enforceable

• states' laws and circuits' views differ

• subject-matter and "selective" waivers

Hopson v. Mavor and Citv Council of Baltimore, 232 F.R.D. 228 {D. Md. Nov. 22, 2005)

25

llI(C). WHERE -Claw-Back (c't'dJ

• F.R.E. 502 - to gap-fill re: those Grimm-type concerns and to protect privilege and work product - became law on September 19, 2008

• Cf. ~ 11 state analogues (AZ, ARK, FL, IA, LA, MD, NH, OK, TN, TX and WA)

• Highlights: • "middle ground" approach, seemingly

even in later STATE court case

• Rules Comm. Report, at 12

• Rejected strict-liability approach, i.e., inadvertent disclosure CANNOT BE automatic subject-matter waiver 26

IIII(C). WHERE -Claw-Back (c't'dJ

• No-Waiver Finding Collaterally Estops Future Waiver Contentions

• Applies to both state and federal future proceedings

• Applies to non-parties to case # 1 IF stip. in a court order

27

l rnr l'El>S'f ;\TES l}ISTRl<;.rcolmT

:-IORlHER.'< DISTRICT Of CAUfORNIA

Plnintiff. °Nt).(: III(C). WHERE -

Claw-Back (c't'dJ STIPT'l .1\ TF.D PROTF.CTIVF. ORDF.R

Ddi:nd:mL

• Federal to Federal or Federal to State ... WHO will be bound ... ?

• 502( d) = if in a court order

~ binds a//

• 502(e) =if in an agreement that not in a court order

~ binds only those parties

• For analysis & sample stips, see slide 34 here

• For case law, see this online compilation 28

llI(C). WHERE -Claw-Back (c't'dJ

tJ,,,. ... to """'tAem .a

• Question: How do you get a court order

if are a non-party to a litigation?

• Negotiate it as a so-ordered Stipulation

• If requesting party balks, (threaten to) bring

Motion to Quash and (threaten to) raise this

issue on a contested motion

• What if are responding to a federal

agency request and there's no lawsuit?

• Motion to Quash. See Laura D. Cullison,

Subpoenas from Federal Agencies: Will FRE

502(d) Protect Privilege?, ABA Secs. Lit. l.

(Winter 2010), at pp. 15-17 [corrected URL] 29

III. Key Issues <c't'dJ

D. WHY •••

• ... are there different parameters as to responding to government inquiries? ''Cooperation''

• What's a ''quick peek''?

• Little or no vetting by responder

• Requester gets fast look at producer's overbroad data set

• Requestor/Recipient then indicates ESI it wants

• Producing party subjects only that smaller subset to rigorous review/vetting

• See generally this ABA slide deck, at 33-34 30

llI(D). WHY -Gov't (c't'dJ

• Direct -- actual ESI revievv

• Indirect = [have producing party and/or expert(s)] run sample searches

• Id.

• ''Quick peek'' advisable?

• in civil litigation?

• reciprocity?

• metadata?

• nature of case and content?

• in government inquiry response? 31

<-"/;£ llI(D). Quick-Peeks (w./Gov't) <c't'dJ - ~ :

FRE 502's Open Issue 0

• ''Selective Waiver'' NOT SOLVED

• Attempt to " disclose the results of an internal investigation to an investigating government agency without waiving attorney client privilege or work product protection as to the outside world"

• U.S. v. Berqonzi (McKesson), 403 F.3d 1048 (9th Cir. 4/1/05) (per curiam)

• Case law continues to be pretty

much universally negative. Examples:

• Gruss v. Zwirn, 296 F.R.D. 224 (S.D.N.Y. 11/20/13),

clarifying 2013 WL 3481350 (S.D.N.Y. 7 /10/13)

• In re Pacific Pictures, 679 F.3d 1121 (9th Cir.

5/10/12), as discussed here

32

III. Key Issues (c't'dJ

E. WHEN •••

• ... should one address cost-allocation (and other objections, e.g., scope)?

• Early and often

• As to cost-allocation:

• Under federal case-law approach, cost­shifting possible but unlikely as to PARTY

• BUT some states' rules provide basis to require requestor to bear costs. E.g., NY CPLR initially places burden on requestor.

• TO LEARN MORE:

• See slides 38-40 here 33

IIl(E). WHEN -Costs <c't'dJ

• Some tips as to non-parties:

• Requester:

• THINK before making - and sticking to -

broad request without offering $ ...

• Responder:

• Raise $ issue at outset, esp. re: ''NRA''

• ''Small sample'' approach? 34

• Proportionality?

III. Key Issues (c't'dJ

F. HOW •••

• ... does one address privacy, anonymity and confidentiality? . . . OVERVIEW .. .

• 1. Consumer's privacy rights implicated?

• Notice required to individual before/while serve subpoena on financial institution?

• See, e.g., Cal. Civ. Proc. Code§ 1985.3

• 2. Anonymity /First-Amendment at issue?

• Plaintiff may need to prove viable liability theory before court agrees to unmask anonymous poster

• Compilation/ discussion of decisions available from Presenter

35

IIl(F). HOW -Privacy (c't'dJ

• 3. Stored Communications Act (SCA)

- Title II of federal ECPA - applies?

• TIP: start with Request for Production

directed to individual party

• Is subpoena recipient a covered entity -

namely Electronic Communication Service

(ECS) or Remote Computing Service (RCS)

- providing service to public 36

IIl(F). HOW -Privacy (c't'dJ

• 3. SCA applies? (c't'dJ

• If so, a suggested approach to assess whether disclosure is mandatory is:

• Step 1: Who has issued the request?

• Step 2: What type of request has been received?

• Step 3: Does requesting entity have proper authority?

• Step 4: What type of information is being sought?

• Step 5: What is required to compel disclosure?

37

IIl(F)(3). SCA - Summary -Overview Charts*

• KEY Q under SCA: can communications or computing service provider (ECS or RCS) be forced to turn over user info.?

• Typically only in criminal proceeding • • •

Federal law enforcement - any jurisdiction

In-state local & state law enforcement

Sometimes

Out of state local & state law enforcement

Never

Foreign governments

• BUT look at Terms of Use and Privacy Policy 38

* by colleague Tyler Newby & ex-colleague David Marty

III(F)(3). SCA Summary (c't'dJ -

Protection Levels

• In 9th Circuit, at least ...

Communications Stored for 180 Days or Less

• Communications Stored for More than 180 Days

• Files Remotely Stored

• Non-Content Records, i.e., Transactional Records

• Basic Subscriber Information

Name, address, length of service, type of service

Connection records, session times

IP address, machine identification

Source of payment, payment information

(most protected)

(least protected)

39

III(F)(3). SCA Summary (c't'dJ

Category of Information Examples of Requested Information Any of these forms of process

Unretrieved communications • Unopened email - Search Warrant

less than 181 days old

- Search Warrant

Retrieved messages or • Email - § 2703(d) court order wit h unretrieved messages older • Chats/ wall posts notice to customer than 180 days - Subpoena wit h not ice to

customer

- Search Warrant

Non-message hosted data • Contents of stored data - § 2703{d) court order wit h (files remotely stored) • Address books and calendars notice

• Stored Chat Logs Subpoena with notice to -customer

• Referring URLs /Outgoing URLs;

Transactional records • Site usage details - Search Warrant (non-content records) • Visitor details § 2703(d) court order -

• Message headers

• Name, address, telephone number, and - Search Warrant other identifying information - § 2703(d) court order

Basic customer subscriber and • Means and source of payment for the - Subpoena

session information service (including credit card/bank

account numbers) - Good faith reliance on legally

• Basic session connect ion records (e.g., IP invalid subpoena -faxed from

addresses recorded at login) other state - still afforded ISP

• Records of phone calls made/received immunity. Sam's v. Yahoo Inc. ,

2013 WL 1501889 (9th Cir.

4/15/13) . . .

llI(F). HOW -Privacy (c't'dJ

• 4. Website's ''Terms of Use'' involved?

• 5. Other Privacy Concerns

• PHI?

• Consumer Credit Report info.?

• 6. Corporate Confidentiality Concerns, incl.:

• Trade secrets

• Proprietary information

• Privileged information

• 7. Redaction concerns too .... 41

IV. Proactive Steps, esp. for Serial Subpoena Recipients

• Retention/Destruction Policy AND Litigation-Hold Protocol

• THE THREE BUCKETS:

• 1) MUST KEEP - LEGAL NEEDS

(statutes and regulations; litigation-hold)

• 2) WANT TO KEEP - BUSINESS NEEDS

• 3) DISPOSE/DELETE - EVERYTHING ELSE

• Under-saving Risk= non-compliance with 1)-2)

• Many Retention resources available on request 42

IV. Retention/LIT-Hold -Risk-Management <c't'dJ

• Some keys to Retention "legal defensibility"

• Building Policy/ Program that:

• avoids "compliance gap" and

suspicions re: roll-out's timing

• synchs Retention Policy with other policies

• considers buckets/ categories:

~ $-amounts of demands?

~ playbook/flow-chart if an ECS/RCS

• has carefully drafted LIT Hold triggers

• Addressing Key EIM Targets

• Knowing what org. has and where 43

Conclusion/ Questions

• Q&A

• Robert D. Brownstone

• Blog {"IT Law Today") Bio

• Biblio {articles, press & speeches, Oh My!)

• Twitter ("@eDiscoveryGuru") I Facebook I Linkedin I Google+

• 650.335.7912 or rbrownstone@fenwick.com

• Please visit F&W EIM, Privacy & LIT. Groups THESE MATERIALS ARE MEANT TO ASSIST IN A GENERAL

UNDERSTANDING OF CURRENT LAW AND PRACTICES.

THEY ARE NOT TO BE REGARDED AS LEGAL ADVICE.

THOSE WITH PARTICULAR QUESTIONS

SHOULD SEEK ADVICE OF COUNSEL. 44