The world runs on digital. Courts and litigators must understand how digitization can affect their cases. This past October, the Sedona Conference released updated analyses to help legal professionals navigate and adapt to the changes that have emerged from electronically stored information (ESI). To account for the ever-evolving digital world, the Sedona Conference posted several commentaries including one on evidence and admissibility with (ESI) and another on Rule 45 subpoenas to non-parties back in 2008. These two commentaries received second editions in October 2020 and reflected updated guidelines on these topics due to rule amendments and technological advancements. In little over a decade, the prevalence of ESI in trials has significantly increased due to the mounting digitization of information. Although most lawyers understand the basics of ESI and best practices relating to eDiscovery, there are knowledge gaps pertaining to the process for getting relevant ESI admitted into evidence, and potential subpoena issues arising when a non-party possesses ESI important to the case. Reviewing the new Sedona Conference commentaries can help litigators better understand these crucial case components and provide organizations with new practices for dealing with Rule 45 subpoenas.

Rule 45 Subpoenas

Federal Rule of Civil Procedure 45 applies to issuing and responding to subpoenas seeking relevant information to a case. In today’s world, evidence will undoubtedly consist of ESI in possession of both parties and non-parties. Since there is more cloud computing, non-parties (like the companies hosting this data) hold more relevant ESI than ever before. However, litigators and courts have lacked proper guidance on how to properly handle non-party discovery and what companies are truly obligated to do when they hold relevant ESI but are not directly involved in a lawsuit.

In Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition, 22 Sedona Conf. J. 1 (forthcoming 2021), the Sedona Conference provided some tips on how to handle Rule 45 subpoenas for non-parties so as not to act unreasonable with information requests, which may impact the way non-party discovery requests are carried out going forward. The commentary includes the following:

• In 2013, Rule 45 revisions took effect to help streamline the process of non-party discovery and lessen arguments arising from this process. These changes are procedural and help clarify parts of the rule that were confusing. For example, one change clearly states, “all subpoenas, whether for documents, deposition, or trial testimony, must be issued from the court in which the action is pending.” Previously, the rule differentiated based on the subpoena’s purpose.
• Another big change in 2013 was amending Rule 45 to require that a court in the district of subpoena compliance ensure that the issuing party reasonably avoid undue burden and expense. If there is too much burden or expense placed on a non-party, the court can modify or quash the subpoena. This is important for regulating the burdens placed on non-parties receiving Rule 45 subpoenas.
• Even though parties are not obligated to confer prior to issuing a Rule 45 subpoena, best practice is to discuss whether a party has control over ESI even when a non-party may have hosted this information and therefore holds possession or custody. In this case, it is generally unnecessary to place the burden on a non-party via subpoena to preserve the ESI when a party could disclose the data. Since the party maintains control of the data, it can legally obtain it from the non-party holding it, which is generally an outsourced cloud service provider. This helps control expenses for the parties and avoids sending unnecessary subpoenas to non-parties.
• Having the parties confer about stipulations for admissibility or evidence authentication will help streamline dispositive motions and trial while removing the need to have a non-party testify about this later on, thus decreasing potential burdens on non-parties.
• Preservation after receiving a Rule 45 subpoena is unclear because technically, a non-party is under no absolute duty to preserve or implement a legal hold absent a special relationship or contractual duty. However, since Rule 45 sanctions can result, it is a best practice for non-parties to reasonably safeguard all data responsive to the subpoena and specify a date that it will no longer preserve the data. This puts the responding party on notice to compel the data sooner and removes the burden on the non-party to indefinitely preserve the evidence.
• Communication between the party issuing the subpoena and non-party is key to avoiding litigation roadblocks and managing costs. This includes attaching a complaint or other information relating the to the lawsuit when issuing the subpoena to better help the non-party understand the reason and scope of the request. Other key areas to communicate about include extensions, scope disputes, and tiered production methods.

Getting ESI Admitted

After locating, collecting, reviewing, and disclosing ESI during a case’s investigation and discovery phases, the next stage requires evidence to be admissible for depositions, dispositive motions, and trial. Major cost concerns surface when parties expend significant ESI funds just to have the evidence excluded when it matters. The 2008 Sedona commentary began to address these concerns by providing litigators with a roadmap on ESI authentication and admissibility practice. However, the 2020 guidance delves deeper into these issues and addresses new data types, which is more reflective of modern litigation practice.

Here are a few key considerations for litigators and data holders that the Sedona Conference discussed in Commentary on ESI Evidence & Admissibility, Second Edition, 22 Sedona Conf. J. 83 (forthcoming 2021) when it comes to ESI and evidence:

• ESI requires parties to ponder evidentiary issues at the beginning of a case in order to manage costs, anticipate potential obstacles, and promote risk management. This includes considerations about whether to outsource or self-collect, the documentation needed to establish proper chain of custody, potentially applicable evidentiary rules, and evidentiary obstacles at the summary judgment stage.
• Authentication methods will vary between data sources. Emerging technologies that are more complex like artificial intelligence, ephemeral data, cloud computing, and blockchain present evidentiary issues. For example, it will likely be easier to authenticate an email over a Snapchat message. With ephemeral data like Snapchat, courts often times require personal knowledge because the data self-destructs. Another common obstacle is when people use emojis with informal communications. Emojis can carry several meanings, which makes interpretation extremely difficult. Admissibility will often require expert testimony and further evidence that help illustrate context. It is generally easier to authenticate simpler data, like emails.
• Several evidentiary rules affect the process for authenticating and getting ESI admitted properly. Some new additions to Federal Rule of Evidence 902 provide clearer guidance on ESI authentication, which allows for affidavits in lieu of live testimony. FRE 902(13) provides for self-authentication of metadata if a qualified person submits certification that the evidence is authentic. FRE 902(14) provides for digital identification when dealing with copied evidence on an electronic device, like email or a spreadsheet. Common approaches by experts for digital identification include but are not limited to hash value comparison.

Conclusion

The above highlights are a small sample of the 2020 Sedona commentaries on Rule 45 and ESI admissibility. Litigators facing these issues would be prudent to review each publication in their entirety to better develop strategies relating to digital evidence. These commentaries delve deep into applicable rules, case law, and best practices. Having a better handle on these processes will help lawyers master the Rule 45 subpoena process, avoid undue burden on non-parties, anticipate evidentiary needs, streamline authentication and admissibility, manage costs, and overall improve case outcomes.

For more information on how to handle new and emerging data sources in eDiscovery, read our whitepaper Supporting Nontraditional Data Types in eDiscovery.