This is one of a series of six articles for InsideCounsel.com. The next article will discuss the first steps to take when you receive a Rule 45 subpoena and how you can work to avoid costs while complying with your obligations.
As general counsel, you may receive a request to preserve evidence in a litigation in which your employer is not even a party. These requests can appear on your desk or in your inbox in a variety of forms. You may be served with a nonparty subpoena under Rule 45 of the Federal Rules of Civil Procedure (or a corresponding state rule), which imposes a legal obligation on the nonparty to take affirmative steps to preserve information relevant to the subpoena, including electronically stored information, at least through the period of time it takes to comply with the subpoena and resolve any issues before the court. But what should a GC do, if anything, when faced with a letter or phone call from a party, or a party’s attorney, requesting a nonparty’s preservation of certain evidence? As a nonparty, what is your obligation to preserve absent a subpoena subject to Rule 45’s requirements?