So, you never plan on getting sued or suing anyone. Do you still need to worry about ediscovery and implementing an electronically stored information (ESI) management system? Yes. Federal Rule of Civil Procedure (FRCP) 45 now extends the reach of federal court subpoena power to include ESI. That means that you may have to find and produce ESI even if you are merely a customer, vendor or other tangential contact with one of the parties to a federal lawsuit.
FRCP 45(c)(1) does direct the party requesting ESI to take reasonable steps to avoid imposing any undue expense or burden on you. Claiming that you are an ESI rube, however, is going to do little to convince the court to take you out of the subpoena crosshairs. Having an ESI management system in place makes it simple to identify and produce responsive ESI with minimal cost and disruption. It will also assist you in any claim that certain responsive ESI is privileged and should not be produced.
On the other hand, feigning ESI ignorance will simply result in a lot of disruption and cost for your company. More importantly, failing to have your ESI ducks in a row when you receive the subpoena will increase the chances that you will inadvertently turn over privileged or confidential information. Also. if you do not have the capability to find ESI responsive to the subpoena, FRCP 45(a)(1)(B) allows the subpoenaing party to go poking around in your computers to try and find ESI you assert you cannot. While courts are reticent to allow parties to go poking around in subpoenaed party’s computers, failure to implement an ESI management system prior to receiving the subpoena often leaves courts little alternative.