E-Discovery Strategies for Rule 45 Subpoenas and Non-Party Production

Recording of a 90-minute CLE webinar with Q&A

Conducted on Wednesday, May 20, 2009
Recorded event now available

This seminar will review Federal Rule of Civil Procedure 45 and how it relates to Rules 26 and 34. The panel will focus on the duties of non-parties to preserve potentially responsive electronically stored information (ESI) and best practices for non-party production.


Rule 45, which addresses the discovery of ESI from witnesses and other nonparties through the subpoena process, is among the recent federal discovery rules amendments. State civil procedure rules and local courts are now following this model.

ESI and its sources, critical to claims and defenses, are frequently outside the litigants' "possession, custody or control." Litigants must obtain information from outside sources, including from webpages, text messages and electronic records housed with healthcare providers, insurers and others.

Rule 45 provides litigants with a roadmap for obtaining such information from non-parties. However, a number of murky areas remain concerning non-party production for the requesting party and the responding non-party.

Listen as our authoritative panel of experienced litigators examines the changes to Rule 45, issues facing non-parties, and best practices for non-party production.


  1. Rule 45
    1. Overview of the rule
    2. Relationship to Rules 26 and 34
    3. Best practices — admissibility
  2. Duties of non-parties to preserve potentially responsive ESI
    1. Triggering the duty
    2. What should be preserved
    3. Ongoing obligation
    4. Consequences for failing to comply
    5. Litigation hold
  3. Issues facing non-parties
    1. Undue burden or cost
    2. Cost shifting — who will pay for production?
    3. Information in “possession, custody or control”
    4. Accessibility, sampling and privilege
    5. Form of production
    6. Cost shifting
  4. Best practices for non-party production


The panel will review these and other key questions:

  • What are the duties of non-parties to preserve potentially relevant electronically stored information — what triggers such responsibilities?
  • How does the permissible scope of discovery of non-party data differ from the scope of discovery of party data?
  • Under what circumstances can a party identify an outside ESI source as not reasonably accessible because of undue burden or cost?
  • How should parties handle the call for "sensitivity" to avoid any undue burden and interference upon nonparties with regard to confidentiality issues?


Christopher J. Garvey, Partner
Goodwin Procter, New York

He concentrates his practice in the defense of complex litigation matters, including mass tort and toxic and environmental exposure matters. He also counsels companies concerning product liability exposure, and in conducting product liability “due diligence” regarding such issues as successor liability and insurance coverage.

Todd L. Nunn, Partner
K&L Gates, Seattle

He practices litigation in state and federal court on behalf of corporate and governmental clients. He advises clients on e-discovery issues, document preservation and discovery response planning. His current practice emphasizes insurance coverage, electronic discovery and class action defense.

Grant J. Esposito, Partner
Morrison & Foerster, New York

He is Deputy Head of the firm’s Electronic Discovery Task Force and focuses on complex commercial litigation issues, including electronic discovery and records management. He has particular expertise in representing clients in the pharmaceuticals and professional services industries in the United States, Canada and Europe.


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