Responding to Federal Subpoenas for Electronically Stored Information

| by gs262000@gmail.com

Last Updated on: 2nd October 2023, 05:52 pm

Responding to Federal Subpoenas for Electronically Stored Information

Getting a subpoena for electronically stored information can be intimidating. What information do you have to turn over, and how should you provide it? This article will walk through the key things you need to know when responding to a federal subpoena for ESI.

What is a subpoena?

A subpoena is a legal demand for information, documents, or testimony. There are different types of subpoenas, but this article focuses on federal subpoenas in civil cases under Rule 45 of the Federal Rules of Civil Procedure¹. These subpoenas are used to obtain evidence from non-parties in a lawsuit.

For example, if you are not directly involved in a court case between Company A and Company B, but have information relevant to the dispute, one of the parties could serve you with a subpoena demanding that you hand over certain documents. You are required by law to comply with a properly served subpoena or file a motion to quash or modify it.

What is electronically stored information (ESI)?

ESI is a broad term that refers to any information stored electronically. This includes emails, text messages, voicemails, social media content, website content, digital photos, database files – you name it. Basically any data you have on a computer, phone, server, or other digital device.

Subpoenas often request ESI because it contains a treasure trove of information. People communicate and share all sorts of stuff electronically these days.

Your duties when responding to an ESI subpoena

Under Rule 45, you have certain duties when responding to a subpoena requesting ESI²³⁴:

• You must produce ESI as it’s kept in the ordinary course of business, or organize and label it to correspond with the subpoena categories.
• If the subpoena doesn’t specify a form for producing ESI, you must produce it in a reasonably usable form.
• You only have to produce ESI in one form, unless the subpoena says otherwise.
• You can object to the form of production requested in the subpoena.
• You may be entitled to compensation for substantial time and resources spent responding.

Let’s break these duties down.

Producing ESI as kept or organizing it

You have two options for providing ESI:

1. Produce it as it’s kept in the ordinary course of business
2. Organize and label it to correspond to the subpoena’s categories

The first option allows you to produce ESI in its native state, without manipulating how it’s stored. For example, if the subpoena asks for your emails with John Doe, you could provide copies of the email files from your Outlook folders or server backup.

The second option gives you more control to sort and label the ESI before production. Using the email example, you could create folders like “Emails with John Doe re: Project X” and put copies of the relevant messages inside. This takes more work, but makes it easier for the requesting party to find what they need.

Producing ESI in a usable form

If the subpoena doesn’t specify how ESI should be produced, you must provide it in a reasonably usable form. This means the requesting party has to be able to access, search, and display the information.

Factors like the type of ESI, amount of data, and resources of the parties may impact what constitutes a usable form. Expect to have a discussion with the requesting party to agree on a format that works for both sides.

Only having to produce ESI once

You only have to produce ESI in one form, unless the subpoena explicitly requires you to produce it in more than one form. This limits the burden on the producing party.

For example, if you provide emails in PDF format, you wouldn’t also have to produce them as MSG files, unless the subpoena demanded both forms.

Objecting to the form of production

If you have issues with the form of production specified in the subpoena, you can object to it and state the form(s) you intend to use instead. This gives you a chance to push back if the requested form seems unduly burdensome or infeasible.

For example, if the subpoena asks you to produce gigabytes of customer data in Excel spreadsheets, you could object that it would be easier for you to produce it in a different database format.

Getting compensation

As a non-party, you may be able to recover reasonable costs incurred in responding to the subpoena. Rule 45 requires the requesting party to avoid imposing undue burden or expense on you⁵.

If compiling ESI is going to take substantial time and resources on your end, you should discuss cost sharing or reimbursement from the outset. Keep detailed records so you can demonstrate the effort involved.

Producing email

Email often makes up a large portion of ESI requested in subpoenas. Here are some best practices for collecting and producing email:

• Work with an IT professional to pull email from all systems where it could reside – email servers, local PCs, mobile devices, cloud storage, backups, etc.
• Try to produce email in native format to preserve all metadata – this means PST or MSG files for Outlook.
• Include attachments in family groups with their parent emails.
• Capture complete email threads/conversations, not just individual messages.
• Organize emails into logical folders by custodian, date range, subject matter, etc.
• Remove irrelevant personal emails and spam.
• Redact privileged, confidential, or sensitive information that is not responsive.

Native format production maintains the integrity of emails and allows the recipient to access features like search and threading. But be sure to discuss native versus other formats (like PDFs or TIFF images) with the requesting party.

What if data is lost or inaccessible?

What should you do if some of the requested ESI is inaccessible because it was deleted, corrupted, or for some other reason?

First, you must disclose what data is missing or lost. Explain when it was lost, the likely reasons why, and steps you took to retrieve it. Withholding information about missing ESI can cause spoliation problems down the road.

Second, if there is any chance deleted data can be recovered forensically, you need to preserve the affected devices. Removing or reusing devices without allowing forensic recovery may be construed as spoliation.

The requesting party may ask the court to order forensic recovery of inaccessible ESI if they don’t believe your efforts to retrieve it were sufficient. Expect to explain why forensic recovery would be unduly burdensome in your specific situation.

How should you prepare ESI for production?

Before turning over ESI, you need to process and prepare it for production:

• Collect – Gather data from all potential sources and remove irrelevant systems/files.
• Process – Convert native files to production formats and remove duplicate/non-responsive data.
• Review – Check for privilege, confidentiality, and sensitive personal information that should be redacted or withheld.
• Produce – Turn over ESI in required forms and include metadata/documentation.

This process takes time and specialized skills. Seek help from legal IT professionals at any stage – don’t try to DIY the entire process without input. Mistakes could lead to sanctions or evidence being ruled inadmissible.

Common production formats

ESI is often converted from native formats to standardized production formats. This allows the receiving party to load the data into review platforms. Common production formats include:

• TIFF – Image files that display ESI as static pages. TIFFs remove functionalities like searching.
• PDF – Retain more functions than TIFFs but still convert dynamic files to static format.
• Native – Producing ESI in original, dynamic format with metadata intact.

Native production preserves the most data and functionality. But for large volumes of ESI, static formats like TIFF or PDF avoid usability issues. Discuss options with the requesting party.

Using professional ESI services

Complying with an ESI subpoena is a big undertaking. Unless you have a litigation support team, you’ll probably need help from legal IT and eDiscovery professionals. Services include:

• Forensic collection from multiple systems and formats
• Processing large data volumes into reviewable collections
• Keyword searching and filtering data sets
• Converting native files to production formats
• Hosting data for online review and production
• Consulting on technical issues and strategies

Relying on professionals reduces mistakes and defensible eDiscovery processes. Get references and compare several providers to find one suited to your data and budget needs.

Securing and transmitting ESI

You have an obligation to protect the security and

• Finding you in contempt of court

 

If you fail to comply with a subpoena, the court may issue an order to show cause why you should not be held in contempt. This gives you a chance to explain your noncompliance before facing sanctions. If the court finds your actions willful or in bad faith, contempt penalties can be imposed⁶.

The court may also grant a motion to compel compliance with the subpoena. This legally requires you to produce the requested ESI or testify, subject to penalties for failing to obey the order.

Monetary sanctions make you pay reasonable costs caused by noncompliance, such as attorney fees or collection expenses. Severe cases could even result in default judgments, evidence preclusion orders, or adverse inference jury instructions that penalize the uncooperative party¹⁴.

Conclusion

Receiving a subpoena for electronically stored information can be a disruptive and costly process. Understanding your obligations for responding, seeking protections where appropriate, and working cooperatively with the requesting party can help minimize the burden. Don’t go it alone – get professional assistance to ensure proper collection, review, and production of ESI.

References

1. Motion Sanctions, No. 20CV374446 (Cal. Super. Ct. Dec. 11, 2020)↩

2. Fed. R. Civ. P. 45(e)(1)(A)↩

3. Fed. R. Civ. P. 45(e)(1)(B)↩

4. Fed. R. Civ. P. 45(e)(1)(C)↩

5. Fed. R. Civ. P. 45(d)(1)↩

6. PART 202. Uniform Civil Rules For The Supreme Court & The County Court, 202.8-d Orders to Show Cause (N.Y. Sept. 2, 2014)↩

privacy of ESI you produce. Steps include:

• Using encryption, password protection, and secure transfer methods
• Anonymizing sensitive personal information of non-parties
• Labeling documents as confidential per protective orders
• Obtaining written confirmation upon transfer

Discuss security protocols with the requesting party and memorialize them in writing. This creates accountability on both sides.

Seeking protections

If an ESI subpoena seems overly broad, unduly burdensome, or requests privileged information, you can:

• Contact the issuing party to narrow the scope or modify the subpoena
• File a motion to quash or modify the subpoena
• Ask the court for a protective order

Courts will limit subpoenas that subject non-parties to undue burden or expense. Be prepared to show how complying would significantly disrupt your business or cause financial hardship.

You can also file motions to protect confidential or privileged information. Courts tend to strictly protect attorney-client privilege and trade secrets.

Non-compliance risks

There can be serious consequences for failing to properly respond to an ESI subpoena, such as:

• Motions to compel or show cause orders
• Monetary sanctions
• Default judgments or adverse inference jury instructions
• Finding you in contempt of court

If you fail to comply with a subpoena, the court may issue an order to show cause why you should not be held in contempt. This gives you a chance to explain your noncompliance before facing sanctions. If the court finds your actions willful or in bad faith, contempt penalties can be imposed⁶.

The court may also grant a motion to compel compliance with the subpoena. This legally requires you to produce the requested ESI or testify, subject to penalties for failing to obey the order.

Monetary sanctions make you pay reasonable costs caused by noncompliance, such as attorney fees or collection expenses. Severe cases could even result in default judgments, evidence preclusion orders, or adverse inference jury instructions that penalize the uncooperative party¹⁴.

Conclusion

Receiving a subpoena for electronically stored information can be a disruptive and costly process. Understanding your obligations for responding, seeking protections where appropriate, and working cooperatively with the requesting party can help minimize the burden. Don’t go it alone – get professional assistance to ensure proper collection, review, and production of ESI.

References

1. Motion Sanctions, No. 20CV374446 (Cal. Super. Ct. Dec. 11, 2020)↩

2. Fed. R. Civ. P. 45(e)(1)(A)↩

3. Fed. R. Civ. P. 45(e)(1)(B)↩

4. Fed. R. Civ. P. 45(e)(1)(C)↩

5. Fed. R. Civ. P. 45(d)(1)↩

6. PART 202. Uniform Civil Rules For The Supreme Court & The County Court, 202.8-d Orders to Show Cause (N.Y. Sept. 2, 2014)↩