In the first four articles of this six-part series on third party discovery, we looked at how courts in various jurisdictions have defined “control” when deciding if a corporation must preserve and/or produce documents of a third party. Last time, we shifted gears a bit to discuss timing of third party discovery, specifically, whether it is possible to seek information from third parties before party discovery is complete. In this article, we provide some practice pointers on timing.
One practical lesson from the cases we discussed in the last article is that a party who anticipates the need for third party discovery and wants it before party discovery is largely completed should begin to pursue that strategy early on. The first and most obvious step is to get the adversary’s document retention/destruction policy or policies. This request has become boilerplate in most discovery demands. Surprisingly, few practitioners actually scrutinize the policies they obtain other than to catch the responding party in non-compliance. In fact, these policies contain a wealth of information that can lead to fruitful avenues of discovery from third parties and more efficient discovery overall. For example, if the practitioner can show that the adversary’s files are unlikely to contain certain materials in light of its retention policy, but a third party’s files might in fact contain that information because the policies are different, a court may be more receptive to letting the third party discovery proceed concurrently. But, what can you do if you have been unable to obtain the third party’s retention policies? Indeed, this was the problem in Arista Records, which we discussed last time.