April 25, 2008     03:00pm - 04:15pm Eastern

When the federal discovery rules were amended in 2006 to address the discovery of electronically stored information (ESI), amendments were also made to the trial rules to allow parties to obtain relevant ESI from nonparties through the subpoena process. Many state courts are new following suit. While these amendments to Fed. R. Civ. P. 45 and its state equivalents may appear to be technical and non-controversial, they recognize a fundamental difference between ESI and traditional paper-based documentary evidence. ESI is the product of complex computer systems, and unlike most paper records, the sources of ESI critical to the claims and defenses of the parties may well be outside their "possession, custody or control." Important email may be on the servers of an employer. Text messages and voicemails may be found in the backup media collection of a telecommunications company. Web pages, blog postings, and chat room conversation logs might only be retrievable from an Internet Service Provider. Important business records may be in the virtual hands of an Application Service Provider. Banks, insurance companies, health care providers, and government agencies may hold vital ESI for cases in which they are not parties. And the list goes on.

While Rule 45 provides the procedural roadmap for obtaining such information from non-parties, it does not provide answers to a number of important practical questions for both the requesting party and the responding non-party. Case law under Rule 45 addressing specifically addressing ESI is scant. For answers, we must turn to the best practices that are being developed under the discovery rules and The Sedona Principles. This month, The Sedona Conference Working Group 1 on Electronic Document Retention and Production will publish its Commentary on Non-Party Production and Rule 45 Subpoenas. Joining us to discuss the Commentary and explore the questions raised by requests for non-party ESI are a retired federal magistrate judge and two trial lawyers experienced in representing both plaintiffs and defendants, all members of Working Group 1's Rule 45 Commentary drafting group.

We are NOT seeking MCLE accreditation for this program.

$79 Working Group Members of The Sedona Conference^®

$99 General Public

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