Planning For And Getting eDiscovery From Third Parties

Collecting third-party documents can be fraught, and without thinking ahead, you can unwittingly create needless challenges to getting data.

Extract from an article by: Kelly Twigger

Gathering documents from third parties is a regular part of litigation, mediation, and arbitration. But it can be fraught, and without thinking ahead, you can unwittingly create needless challenges to getting data. So what should you plan in advance? We’ll approach this from the perspective of the requesting party, but this list applies to the responding party as well. Negotiating these pieces up front will save your client money and cut out the eDiscovery fire drill.

1. Whether you anticipate needing third-party data at all.  Do you need it?  From who or what entities?  What are the obstacles to getting it? Who do you need to talk to? Are there regulations or laws that will limit what you can get?  We’ve run into bank regulations, HIPAA and other considerations that made even getting to a conversation about data hard. Consider those in advance or they’ll add months to your process.
2. Are there any issues to issuing subpoenas to the parties you have in mind?  Many times clients have ongoing relationships with the third parties. They may be suppliers, consultants, friends, board members, former employees, existing contractors, ex-husbands, etc. Find out about those relationships and talk to your client about what steps to take to preserve those relationships. Walk the line between getting what you need and maintaining status quo. Nobody likes it when the lawyers march in demanding stuff and the ripple effect can be a disaster. Young associates, heed my warning. One of the rights of passage in practice is screwing something like this up. Relationships are everything, and you do not want to mess up your client’s relationships for the benefit of their litigation. That is a decision for your client to make. And don’t skip this step because you have an arbitrary deadline to make either. Take the hit on not meeting it and get it right. In the end, that’s what matters. Many times, our clients have their in-house legal department make a connection for us with the legal department at the subpoenaed party so we can leverage the relationship to a productive end.
3. When do you need it?  In a recent matter, having the third party data early in the case was the desire, but a series of unfortunate events delayed getting data for almost 6 months. The delay affected our ability to review and use the third party data as effectively as could have been done with more time in advance of depositions. Think about your timeline now instead of waiting.
4. What do you need?  Rule 45 will work to limit the scope of your subpoena to relevant information that is proportional to the needs of your case, using the same factors from Rule 26. Make sure you are asking for what you really need. Consider working together with third party counsel to narrow the scope of the subpoena by dates or a fixed list of custodians. You can also agree to accept a sampling of custodians at the outset to review and then consider broadening the reach. Collection is not as expensive or time-consuming as review and production, so you may agree that a broader set of data is collected and then agree on a sampling protocol. Keep in mind that your date range can vary by custodian, depending on the dates of that individual’s involvement with the subject of the case. If you don’t have enough information, come up with the list of questions you need to help you make those decisions, and have a call with counsel for the subpoened party to discuss them. Tell them you want to provide a constructive scope. Doesn’t hurt to try.
5. Talk to your client about the third party. Know and understand exactly what the third party has, who the custodians are likely to be, and fill in as much as possible about date ranges for custodians. Have your witnesses look at emails to see when someone started on the project. Use the data you have to tell you about the data you want.

Read the complete article at Planning For and Getting eDiscovery From Third Parties