The Sedona Conference Has a Final Commentary on Rule 45 Subpoenas to Non-Parties: eDiscovery Best Practices

The Sedona Conference® (TSC) and its Working Group 1 on Electronic Document Retention & Production (WG1) has now published the Final Version of The Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition.

In 2008, TSC published its first edition of this Commentary, which was previously titled Commentary on Non-Party Production & Rule 45 Subpoenas.  As you can imagine, much has changed since then, including substantial revisions to Rule 45 in 2013, 2015 amendments to the Federal Rules of Civil Procedure (which didn’t further revise Rule 45 directly, but significantly affected non-party practice) and rise in cloud computing has placed large amounts of party data in the hands of non-parties, leading to increased use of Rule 45 subpoenas.

Evidently, it took two public comment versions to get here: the first was in January (which I covered back then) and there was a second public comment version in August.  I found out that the Final version is now available from The Hon. Andrew J. Peck (ret.), who was one of the Editors-in-Chief on the publication, and who was also – not surprisingly – great in Tuesday’s October EDRM Case Law webinar, with Mary Mack, Tom O’Connor and me (and – spoiler alert! – is slated to participate in the November panel as well!).  More to come on that soon!

There are essentially five parts in the 83-page (PDF) Commentary (after the Introduction, Part I).  Part II covers Rule Changes and Their Impact on Non-Party Discovery.  Part III covers The Possession, Custody, and Control Framework and Its Impact on Rule 45 Obligations.  Part IV discusses Preservation obligations, prior to and after receipt of a subpoena and remedies for spoliation.  Part V discusses Rule 45(d) Costs, Sanctions, and Motion Practice.  And, Part VI discusses Rule 45 Practice Pointers.   There are no Appendices.

You can download a copy of the Commentary here (login required, which is free).

Speaking of Rule 45 (and great webinars), yesterday, in the ACEDS webinar “Zooming” into 2021 with Audio/Video Discovery, I discussed Tate v. City of Chicago, which was a Rule 45 case related to a third party subpoena of ESI to CBS under Rule 45 (which CBS opposed) related to civil rights action against the City of Chicago.  Great discussion of a couple of cases related to audio/video discovery, and great presentations from Brett Burney of Burney Consultants and Ashley Griggs of NICE-Nexidia regarding audio/video discovery trends and a demonstration by Ashley on how technology can help with the enormous growth of audio/video ESI.  If you missed it, you can check out the webinar here (registration required, but it’s free!).  Check it out!

So, what do you think?  How does your organization address subpoenas of non-parties in litigation today?  Please share any comments you might have or if you’d like to know more about a particular topic.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.

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