Wait, Why Am I Receiving This? Practice Pointers On Third Party Responses To Litigation Preservation Demands

Most commercial litigators are familiar with the process for responding to a subpoena demanding the production of documents from a non-party to litigation under Federal Rule of Civil Procedure 45.  But interesting considerations arise when a client who is not a party to litigation receives a demand to preserve documents in connection with or in anticipation of litigation.

Attorneys have often struggled with efficiently requesting preservation of electronically stored information (ESI).  The 2015 Amendments to the Federal Rules of Civil Procedure sought to limit the potential for over-preservation by clarifying that the scope of discovery is limited to proportionality factors and relevance.  Even after the 2015 Amendments, however, attorneys continue to cast a broad net in serving preservation demands, often serving these demands on third parties.