August 20, 2019 Articles

Third-Party Subpoenas and the Duty to Preserve

What duty does your company have to preserve data it would normally and legitimately dispose of when it receives a subpoena as a nonparty to a suit?

By Hon. J. Michelle Childs and Ethan Bercot

Your company has just received a subpoena demanding that it disclose some of its most confidential and sensitive data. Hurriedly reading through the subpoena, you notice that it arises from litigation in which your company is not even a party. In fact, neither you nor your company was aware of the case until you received the subpoena, and you are not sure who the parties in the case are or even what the litigation is about. You and your company are aware—painfully aware—of the process of issuing litigation holds, designating custodians, and preserving mountains of otherwise unneeded data when your company is a party to litigation, but is all that disruption to business really necessary when your company is not even a party to the litigation from which the subpoena you just received arises? What duty does your company have to preserve data it would normally and legitimately dispose of when it receives a subpoena as a nonparty to a suit?

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