By The Sedona Conference

The December 2006 amendments to the Federal Rules of Civil Procedure relating to electronically stored information (”ESI”) affected not only discovery practices between parties, but also the acquisition of information from non-parties. This paper describes the changes to Federal Rule of Civil Procedure 45 (third party subpoenas), briefly explains the similarities and differences between amended Rule 45 and amended Rules 26, 34 and 37, and explores what lessons the case law teaches us as to whether there are differences in the way courts address the duties of parties and non-parties related to producing ESI. In addition to discussing what the new rules and cases require, we explore the actual experiences of attorneys and parties and outline best practices.

Clearly, practice prior to the 2006 amendments involved requests for and production of ESI from non-parties in connection with Rule 45 subpoenas, just as did discovery between parties. The change brought about by the amendment to Rule 45 was to recognize this practice explicitly.

For the complete article, click on the following link:

The Sedona Conference Commentary On Non-Party Production & Rule 45 Subpoenas