The first four articles in this six-part series have focused on when a company can be ordered to preserve and/or produce documents of a third party. In the final two segments, we shift gears to discuss the timing of third party discovery. Rule 45, which governs subpoenas, has recently changed, but one thing remains the same: Courts are reluctant to impose unnecessary burdens on third parties when it comes to discovery unless it is shown that a party controls the third party’s documents. In practice, this often means that discovery from third parties must wait until the parties have exchanged all the information they have in their own files, virtual and otherwise.
While the case law confirms that this is the general rule, it may nonetheless be possible to obtain discovery from third parties before completing party discovery. This will take a bit of strategic planning. Likewise, some of the choices that the parties make in the early going of the case may have an effect on the timing of third party discovery. This article discusses the current status of the law, and the next will provide practical tips both for obtaining or resisting early third party discovery.