In this article, we examine what you should do as general counsel when you are served with a binding subpoena demanding preservation and production. Particularly, where the subpoena seeks costly and cumbersome electronically stored information (ESI), this article examines what you can do to efficiently minimize your potential exposure and burden while complying with the obligations imposed by Rule 45 of the Federal Rules of Civil Procedure.
Service of Rule 45 subpoena immediately triggers a nonparty’s obligations to preserve all material within the scope of the subpoena, even if the nonparty intends to object and/or work with the requesting party to narrow the breadth of the request. The first step is to closely evaluate the scope of the subpoena. This includes: