November 16, 2018 Articles

A Unified Theory of Standards for Third-Party Discovery

Special problems arise when nonparties hold relevant documents or information.

By Andrew J. Felser

Special problems arise when nonparties hold documents or information relevant to the parties’ claims or defenses. Some nonparties are prepared to handle the burdens of collecting and producing evidence. Hospitals, for example, have institutionalized records policies and records departments or have outsourced such responsibilities to others. Other large, well-established organizations may have similar resources. Individuals and smaller businesses do not and, to make matters worse, often lack any budget for unforeseen legal costs—costs that can rise swiftly after document or deposition subpoenas are served.

Most recipients of subpoenas are, at best, reluctant to incur much effort or expense to assist in a lawsuit to which they are not a party, especially if they have no material interest in the outcome of the case. And yet, in the words of an oft-cited maxim, “[t]he public has a right to every man’s evidence.”

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