Every year about this time, we take a look at our most read articles to see what piqued people’s interest. Come to find out, this year, people are very interested in subpoenas for documents and electronically stored information (ESI).
Specifically, people want to know:
- Why you cannot subpoena Google for your archenemy’s email
- Who pays for responding to document subpoenas
- What happens when someone ignores a subpoena for email
- If you really do have to respond, what format should the documents and information be produced?
Who Pays?
Our most widely read article this year dealt with with the wallet: You Subpoenaed My Documents, Shouldn’t You Have to Pay for Them?
Here is a preview: if you receive a document subpoena there is a good chance you will have to pay whatever it costs to respond (even if you are not a party to the legal dispute to which the subpoena is connected). The general presumption (in federal court and many states) is that the responding party must bear the expense of complying with discovery requests unless the expense is “significant.”
Why Can’t I Just Go Straight to Google?
Also of interest to readers is what to do when someone ignores a subpoena for email. Can you request it directly from Google (or whatever company hosts the email)? Doubtful.
The Stored Communication Act (SCA) prevents Google and other email service providers from providing the content of email messages. Enacted in 1986, it protects against potential privacy breaches not addressed by the Fourth Amendment and prohibits “electronic communication service providers” and “remote computing service providers” from disclosing the content of electronic communications in response to civil subpoenas (and otherwise).
However, even if the SCA makes it hard to get email messages directly from email service providers, if the person whose email is at issue is a party to a lawsuit, he or she is obligated to produce relevant email messages in his possession, custody and control.
What is Possession, Custody and Control?
Speaking of “possession, custody and control,” our fourth most read article in 2018 focused on just that: “Possession, Custody & Control” Tackled by The Sedona Conference (an institute focused on the advanced study of law and policy in the areas of antitrust law, complex litigation, and intellectual property rights). Although the article is a couple years old, it is still an oldie but a goodie.
in 2016, the Sedona Conference released its “Commentary on Possession, Custody, or Control”, which, the group explained, is intended to “provide practical, uniform and defensible guidelines regarding when a responding party [to electronic discovery requests] should be deemed to have ‘possession, custody, or control’ of documents and all forms of electronically stored information . . . subject to [Federal Rules of Civil Procedure] 34 and 45 requests for production.”
The Commentary suggests that for a party to have “possession, custody or control” of documents or ESI, they must be in actual possession of the material or have “the legal right to obtain and produce the [d]ocuments and ESI on demand.”
When Do I Need a Legal Hold and Should I Agree to an ESI Protocol?
Finally, the last two articles getting the most reads this year address first steps to take when served with a document subpoena or threatened with a lawsuit: institute a legal hold and maybe agree to an ESI protocol.
Because one of the first things to do when hit with a subpoena or lawsuit is to put a legal hold in place, our article on Litigation Hold Triggers and the Duty to Preserve Evidence always seems to get quite a few reads. If you do not want to read the whole article, we can save you some time and give you the gist:
The duty to preserve relevant information is triggered when litigation is “reasonably anticipated.” Rimkus Consulting Group, Inc. v. Cammarata, 688 F. Supp. 2d 598, 612-613 n. 7 (S.D. Tex. 2010). The test for “reasonable anticipation of litigation” varies by jurisdiction, but, in general, reasonable anticipation of litigation arises when a party knows there is a credible threat that it will become involved in litigation. Zubulake v. UBS Warburg LLC, 220 F.R.D. 212, 217 (S.D.N.Y. 2003).
If you have a litigation hold in place and you collected the information and ESI related to the legal matter, the final step is to produce it and provide copies to your opponent or the requesting party. How do you keep fights to a minimum about the format in which the information and ESI will be produced? You enter into an ESI protocol.
Our article, 15 Issues to Consider for E-Discovery and ESI Protocols, is another oldie but goodie, but again this year was one of our top 5 most read articles. It offers a few suggestions about what to include in ESI protocols and agreements to make with opposing counsel.
As always, we appreciate the support and reads! (And please do not forget, if you get hit with a subpoena for a bunch of documents and ESI, we are here to help).