Nonparty subpoenas raise the same important issues relating to the discovery of electronically stored information (ESI) as do initial disclosures and requests for production between the litigants. This was true even before the 2006 amendments to the Federal Rules of Civil Procedure, but Rule 45 now expressly provides the right to discover ESI, just like Rules 26 and 34. The other notable amendments to Rules 26 and 34 relating to ESI discovery were also incorporated directly into Rule 45. Accordingly, the headline ESI concepts of “inaccessibility,” “test sampling,” and “cost shifting”—as well as the “one-bite” rule, the “reasonably usable” format rule, and “clawback” rule—are now specifically included in Rule 45.
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