CBA Record March/April 2022


Responding to Subpoenas Seeking Electronically Stored Information: 7 Basic Tips for Young Lawyers By Jake Berger

A t some point during your career, you or a client will likely receive a subpoena seeking production of documents and electronically stored information (ESI). For lawyers who do not regularly engage in the discovery process or who do not regularly deal with ESI, responding to an ESI subpoena can be con- fusing, intimidating, and counterintuitive. However, failing to respond properly and thoroughly can expose the lawyer and the subpoenaed party to sanctions. To protect a client, a lawyer must clearly understand their own and their client’s obligations when responding to an ESI subpoena. The guiding principle is that the responding party must conduct a reason- ably diligent search for documents and ESI within their possession, custody, or control. What constitutes a reasonably diligent search under the circumstances depends,

in part, on the requests in the subpoena and their scope; who speci fi cally at the responding party may have responsive documents or ESI; and how the responding party and its personnel store and maintain documents and ESI. If litigation ensues over the subpoena, a court is more likely to conclude that the subpoena response is defensible if you have conducted a reasonably diligent search under the cir- cumstances. To help ensure that you conduct a reasonably diligent search for ESI that is defensible under the circumstances, below are seven basic tips to follow when respond- ing to an ESI subpoena: Deadline and Legal Hold Letters Tip 1: Review the subpoena carefully, docket the response deadline, and send legal hold letters to the appropriate personnel.

When you or your client receive a sub- poena for ESI, the fi rst step is to review it carefully to understand which court issued the subpoena, what documents and ESI the subpoena seeks, and when and how the subpoena was served. Review the rules of procedure and local rules to determine if the subpoena was properly served, and, accordingly, the response deadline. If pos- sible, obtain the complaint, answer, and any other important pleadings or motions from the underlying case to understand the dispute and your client’s relationship to it. Gaining an understanding of the scope of documents and ESI the subpoena requests will help determine whether you can comply with the subpoena by the deadline or whether you will need to ask for or seek more time for compliance, as well as your objections. Additionally, gaining an understand- ing of what subpoena requests will permit

26 March/April 2022

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