FRCP 45 Third Party Subpoenas – Electronic Discovery Law

Axis Insurance Company v. American Specialty Insurance & Risk Services, Inc. (N.D. Ind. 2021)

Key Insight:

Plaintiff’s Motion to Compel sought missing documents and communications from, and the correction of metadata “issues” from Defendant and its parent company (via third party subpoena), and sought an award of attorney’s fees and costs. The Court partially granted the Motion, requiring Defendant to produce responsive communications and documents in its possession, and to conduct a search for such documents and communications, and provide an affidavit detailing the steps it took to search for said items.

The Court granted Plaintiff’s Motion to Compel insofar as it sought the metadata of documents responsive to its initial requests for production. Regarding the third party subpoena to Defendant’s parent company, the Court found that the office of the parent company subject to the subpoena was outside of the Court’s jurisdiction and consequently, denied Plaintiff’s Motion insofar as it sought to enforce the subpoena. Finally, Court awarded Plaintiff fees and costs regarding the missing documents, but not the “issues” with metadata.

Nature of Case: Breach of Contract

Electronic Data Involved: Emails, Metadata, PDFs

Case Summary

Lake v. Charlotte County Board of County Commisioners (M.D. Fla. 2021)

Jun 09 2021

Key Insight: Communications between a party and its hired legal consultant are work product if they are generated in anticipation of litigation. Work product containing mental impressions, conclusions, opinions, or legal theories concerning the litigation is rarely discoverable and enjoy “near absolute immunity.” Documents subpoenaed from the legal consultant still retain work product privilege.

Instead of providing privilege logs, the court allowed the legal consultants to categorically withhold or redact privileged communications so long as they provided a certification that none of withheld or redacted documents were distributed to or reviewed by any other third parties. In lieu of such certification, the legal consultants would have to produce a privilege log.

Nature of Case: Property, Eminent Domain

Electronic Data Involved: Email, Electronic Communications

Case Summary

Rhino Metals, Inc. v. Sturdy Gun Safe, Inc. (District of Idaho, 2020)

Jan 22 2020

Key Insight: two reports for different suits, written by the same expert. defendants in those cases subpoenaed each other’s report to get it without confidentiality restrictions

Nature of Case: intellectual property infringement

Electronic Data Involved: expert report deemed confidential

Keywords: subpoena, expert report, confidential, privilege, protective order

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Smith v. TFI Family Services (Kansas, 2019)

Sep 04 2019

Key Insight: failing to produce ESI in native format with associated metadata.

Nature of Case: Civil action for deprivation of rights

Electronic Data Involved: PDF documents

Keywords: Metadata, native format, ESI in native format

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Man Zhang v. City of New York (SDNY, 2019)

Aug 20 2019

Key Insight: Spoliation, failure to issue Litigation Hold,

Nature of Case: 1983 Civil Rights

Electronic Data Involved: Hard copy, video, telephone recordings

Keywords: Adverse inference, Default Judgment, Sanctions, Attorney’s fees and costs, failure to investigate, Spoliation, Intent to deprive, Reasonable steps to preserve

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Pentel et al v. Shepard et al (D. Minn., 2019)

Aug 07 2019

Key Insight: audit returns requested not proportional since massive burden to non-party

Nature of Case: Driver’s Privacy Protection Act

Electronic Data Involved: LEMS audit returns

Keywords: judge warns of sanctions

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Lotus Indus., LLC v. Archer (E.D. Mich., 2019)

May 24 2019

Key Insight: Whether a subpoenaed third party is entitled to costs and portion of fees before engaging in document processing

Nature of Case: RICO and First Amendment Retaliation

Electronic Data Involved: documents

Keywords: fee shifting, undue burden, costs and fees

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U.S. v. Therrien, No. 2:19-cr-00085 (D. Vt. Mar. 13, 2019).

Mar 13 2019

Key Insight: contention that personal information was improperly subpoenaed (without a search warrant) from Google in violation of 4th amendment. Third party doctrine.

Nature of Case: transport of child pornography

Electronic Data Involved: google subscriber information, IP address information

Keywords: motion to suppress, warrantless searches, “special solicitude for location information,” no reasonable expectation of privacy

Paisley Park Enterprises, Inc. et al v. Boxill et al (D. Minn., 2019)

Mar 05 2019

Key Insight: Rule 45 subpoena to defendant upheld and party warned over boilerplate objections

Nature of Case: Trade Secret Misappropriation

Electronic Data Involved: documents

Keywords: judge warns of sanctions

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Katz et al. v. Liberty Power Corp., LLC et al. – 18-cv-10506-ADB (District of Mass. , 2019)

Feb 27 2019

Key Insight: whether discovery can be bifurcated for the purpose of a dispositive motion and third party discovery

Nature of Case: Violation of the Telephone Consumer protection Act of 1991.

Electronic Data Involved: bifurcated discovery, emails, third party telephone records

Keywords: bifurcated discovery, class discovery, stayed discovery,

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