This article will examine motions to modify federal subpoenas seeking electronically stored information (ESI). It will cover the legal standards for modifying ESI subpoenas, strategies for challenging overbroad requests, and best practices for crafting tailored requests. We’ll also look at recent case examples and highlight key takeaways for practitioners.

Legal Standards for Modifying ESI Subpoenas

Under Rule 45(d)(3), a court must quash or modify a subpoena that subjects a person to undue burden. With ESI requests, undue burden often arises from the sweeping scope of production. Requests for “any and all documents” related to a topic are frequently challenged as overbroad.

Courts assess undue burden by examining the subpoena’s relevance to the case, the party’s need for the information, the breadth of requests, and the burden imposed on the subpoenaed party [Rule 45]. Requesting all of a company’s email communications may cover relevant information, but prove unduly burdensome to gather. Courts balance these factors case-by-case to determine if modification is warranted.

Beyond undue burden, courts will quash subpoenas that are vague, ambiguous, or call for privileged information. For example, a request for “communications regarding the contract” may be deemed vague. Privilege issues also arise with ESI, as subpoenas often sweep in confidential or attorney-client communications.

Modifying overbroad subpoena requests is a common aspect of ESI discovery. Lawyers must carefully craft requests to seek relevant material while avoiding undue burden. When challenging subpoenas, specific objections to scope and burden are key.

Strategies for Challenging Overbroad ESI Requests

Recipients of broad ESI subpoenas have several options to limit unwieldy requests:

• Move to quash – Argue the entire request imposes undue burden under Rule 45(d)(3).
• Move to modify – Ask the court to narrow the scope to specific topics, date ranges, custodians, etc.
• Object during meet and confers – Confer with opposing counsel to explain objections and suggest reasonable modifications.
• Offer sampling – Propose producing a sample data set to demonstrate burden.
• Seek cost-shifting – Ask the court to require the requesting party to pay production costs.

Counsel should strategically choose the best options under the circumstances. For example, offering sampling may work well early in a case. Moving to quash or modify often occurs after meet and confer efforts fail. The key is showing the court specific reasons why a request is overbroad.

Best Practices for Tailored ESI Requests

On the flip side, parties issuing subpoenas must take care to craft tailored requests. Best practices include:

• Specifying search terms, date ranges, custodians, and data sources.
• Asking for communications regarding specific issues or transactions.
• Seeking objective information like contracts and financial records.
• Avoiding broad requests for “any and all documents relating to”.
• Being reasonable – don’t ask for 20 years of records if 3 years will suffice.

Following these guidelines helps produce relevant material while minimizing burden. Savvy counsel issues well-scoped requests, but remains flexible during meet and confers. Narrowing date ranges or custodians may alleviate the recipient’s concerns. Cooperation goes a long way in ESI discovery.

Key Takeaways

Motions to modify ESI subpoenas are common discovery tools. When challenging subpoenas, parties should clearly explain the undue burden imposed. When requesting ESI, tailored requests avoid later objections. Throughout the meet and confer process, cooperation and flexibility remain critical. With thoughtful requests and reasonable challenges, parties can obtain necessary ESI without overburdening opponents or third parties.