When non-parties are involved in a matter, the eDiscovery requirements can be challenging and confusing. Understanding the specific standards and obligations that need to be met can accelerate the eDiscovery process, improve the quality of the data from non-parties, and steer your organization clear from possible sanctions. In this webinar, Ann Marie Gibbs, National Director of Consulting for Daegis, will share her insight on how you can avoid common pitfalls related to FRCP 45 subpoenas and non-party productions. The webinar will cover questions organizations frequently ask such as: - Does relevance always matter? - What do courts say about “possession, custody or control”? - Are the data preservation standards different for FRCP 34 and 45? - Does a party have standing to move to quash a subpoena? - When tracking costs to save money, what should be recorded?

1. FRCP 45 Subpoenas and Non-Party Productions: Avoiding the Pitfalls

2. Does Relevance Always Matter? Yes 2

3. Possession, Custody or Control Does the party retain the legal right to or practical control over documents in the possession of the legally related non-party? Indicia of Control Corporate structure, The non-party’s connection to the litigation, Whether the related party and non-party exchange information in the ordinary course of business, The non-party’s stake in the outcome, and Whether the non-party has participated in the litigation. SeeSteele Software Systems v. Dataquick Information Systems, 237 F.R.D. 561 (D. Md. 2006). 3

4. Possession, Custody or Control Does the party retain the legal right to or practical control over documents in the possession of the legally related non-party? Indicia of Legal Authority Is the non-party an agent or independent contractor? See Goodman v. Praxair Services, Inc., 2009 WL 1955805 (D. Md., July 7, 2009). Does the party retain the legal right to access documents via a contract with the non-party? See Nursing Home Pension Fund v. Oracle Corp., 2008 WL 4093497 (N.D. Cal., Sept. 2, 2008). 4

5. Possession, Custody or Control Does the party retain the legal right to or practical control over documents in the possession of the legally related non-party? Avoiding Pitfalls: Legally Related Entities Discovery response plan: Assess the relationship with any legally related entities. Does the organization have practical control over ESI in the possession of such entities? 5

6. A Non-Party’s Preservation Duty Arises… …with Service of the Subpoena 9 Moore’s Federal Practice §45.02[1] (Matthew Bender 3d. ed.) Preserve per the scope of the subpoena. Preserve more broadly if required by contract. Preserve more broadly if the non-party anticipates becoming a party in the current or a future litigation: See, e.g., Phillip M. Adams & Assocs. v. Dell, 621 F.Supp.2d 1173 (D. Del. 2009) (“sensitivity” to industry issues triggered duty to preserve). 6

7. A Non-Party’s Preservation Duty Arises… …with Service of the Subpoena The Sedona Conference® suggests: The parties may wish to discuss at the meet and confer how and when to notify non-parties as to whether they may resume routine document destruction. A non-party asserting that it has fulfilled its preservation obligations may wish to notify the issuing party in writing. Once the issuing party has received that notice, the non-party should continue to preserve for an agreed-upon “review period” while the receiving party reviews and authenticates the production and, Absent further request or objection by either party, the non-party’s obligation to preserve should terminate at the conclusion of the specified “review period.” 7

8. The Standing of a Party to Move to Quash a Rule 45 Subpoena A motion to quash, or for a protective order, should generally be made by the person from whom the documents or things are requested. 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure §2459 (2d. ed. 1995); Kiger v. Plaisance Dragline, Civ. A. 04-3453, 2006 WL 3228289, at *1 (E.D. La. Nov. 2, 2006) A party generally lacks standing to challenge a subpoena issued to a non-party absent a claim of privilege, proprietary interest, or personal interest in the subpoenaed matter. United States v. Nachamie, 91 F.Supp. 2d. 552, 559 (S.D.N.Y. 2000); Chiperas v. Rubin, No. CIV.A 96-130, 1998 WL 765126 (D.D.C. Nov. 3, 1998) 8

9. The Standing of a Party to Move to Quash a Rule 45 Subpoena A “personal interest” in the subpoenaed ESI may arise where a non-party’s computer was used by the non-party to send information on behalf of a party, or the party itself used the computer. See, e.g. Hoover v. Florida Hydro, Inc., 2008 WL 4467661 (E.D. La. Oct. 1, 2008) (Where the plaintiff had standing to move to quash a subpoena issued to his mother because he and his mother both sent information relevant to the litigation from her computer.) 9

10. Tracking Costs Number of Custodians Data Volume Resources Tools Business Disruption 10

11. Thank You! Please visit www.daegis.com for more eDiscovery resources.