Third Party Preservation Obligations? Not Without a Subpoena They Don't
Q & A with WLC eDiscovery Counsel, Chioma Deere, Esq.
Q: Does an oral request during a deposition to a third party (non-party) to preserve evidence obligate the non-party to preserve evidence, including electronically stored information (ESI)?
A. No. Under both the Federal and Florida State Rules of Civil Procedure, only a subpoena places a legal obligation upon the non-party to preserve and produce information and evidence, including ESI. That obligation begins only when the subpoena is duly served and ends when the subpoena has been fulfilled.
A recent Florida appellate decision, Shamrock-Shamrock, v. Remark, 271 So. 3d 1200 (Fla. 5th DCA 2019), ruled that Florida law does not impose a duty on non-parties to litigation to preserve evidence based solely on the foreseeability of litigation.
As a best practice, you should inform the non-party of their duty to preserve when the subpoena, even if they have an objection to the request, at least through the period of time it takes to comply with the subpoena and resolve any issues before the court.
Consider using specific non-legalese language to put potential producing parties on notice of their legal obligation to preserve and stop deletion of the requested data while under subpoena.
Consider using specific non-legalese language to put potential producing parties on notice of this legal obligation to put all routine and automatic deletion or destruction of potential evidence on hold until the subpoena has been fulfilled, or ordered by the Court upon motion by the non-party or the requesting party.
Even though non-parties are not obligated to preserve or institute a legal hold and stopping routine destruction of evidence, attorneys can always ask the non-party, say during a deposition, to preserve the evidence on the record and gain an agreement under oath that they will preserve.
Remember, F.R.C.P. 45 permits an issuing party to specify the format in which the responding party should produce the requested ESI. A non-party’s response options vary depending on whether the requesting party exercises this right.
Most importantly, always follow-up and confer with the non-party or their counsel regarding ESI if you are requesting ESI or similar type of production.
Chioma Deere, Esq.
Resources: FRCP 45; Fla. R. Civ. P. 1.351 ; Shamrock-Shamrock, v. Remark, 271 So. 3d 1200 (Fla. 5th DCA 2019); The Sedona Conference® Commentary on Non-Party Production and Rule 45 Subpoenas, 2008; In re Napster, Inc. Copyright Litig., 2006 WL 3050864, at *6 (N.D. Cal. Oct. 25, 2006) (organization under a legal obligation to preserve documents based on a third party subpoena).
Photo by Kai Pilger on Unsplash
Legal Project Management
5yExcellent clarification regarding ESI and 3P preservation obligation. Thanks, Chioma.