CBA Record March-April 2022

YOUNG L AWYERS S EC T I ON : COME TOGE THER

Client Discussion Tip 3: Discuss the subpoena with your client. After you receive the subpoena, discuss it with your client as soon as possible. During the discussion with your client, you should gain an understanding of the universe of potentially responsive data and documents your client may have. This requires you to understand the relationship your client had with the litigants and what types of responsive documents your client may have. If your client is an organiza tion, your discussion should also explore speci fi cally who at the organization may have responsive documents and how or why they may have custody of them (the custodians). Depending on the circum stances, you may also need to interview the custodians to determine their relation ship to the subpoenaed information, what responsive information they may have, and where that responsive information is kept. Your discussion should also cover potential objections to the subpoena, including strategies for narrowing the scope of the subpoena if your client has substantial amounts of potentially responsive mate rial. Finally, your discussions with the client should touch on whether to engage an ESI vendor to collect and produce the requested ESI. From these discussions, you should clearly understand why your client may have responsive documents, what respon sive documents they may or may not have, roughly howmuch data or documents they may have, where and in what format those documents are kept, and how to collect and produce the requested documents. Response to the Subpoena Tip 4: Draft a response/objection letter and serve it by the response deadline. Once you thoroughly understand what the subpoena seeks and what responsive information your client may have and have a basic plan to collect and produce it, begin drafting a letter that responds and objects to the subpoena and its requests. State any objections in detail, including any objec tions to the de fi nitions or instructions in the subpoena. Do not use “boilerplate”

you to promptly send a su ffi ciently detailed legal hold letter to your client and/or your client’s personnel who may have responsive documents. Th e legal hold letter should, among other things, explain with su ffi cient speci fi city what categories of documents may be responsive to the subpoena. It should also instruct your client or its per sonnel to suspend deletion of potentially responsive documents and to preserve them pending further direction. Requested Information Tip 2: Understand exactly what ESI the subpoena seeks. Some subpoenas simply state that they seek ESI but provide little detail about the requested ESI production. Other subpoenas seeking ESI contain detailed instructions regarding the requested ESI sought and how to produce it, including production format, fi le structure of the ESI production, and metadata fi elds. Basically, metadata is data that provides information about the digital fi le and the data it con tains, such as the date the fi le was created, the author of the fi le, the date the fi le was last saved or opened, and where the fi le is stored (e.g., in the cloud, on a server, or directly on your client’s computer). Some speci fi c information present within meta data is “hidden,” meaning that it is not readily apparent when you view the fi le on your desktop or when you open the fi le. If you are not familiar generally with how digital data is created and stored or speci fi cally with ESI discovery and meta data, these ESI instructions may appear to be written in a foreign language, and you must avail yourself of whatever resources you have available to understand the sub poena. Googling some of these terms can help provide a basic understanding that will inform your subpoena response, as will consulting ESI discovery practice manuals or another lawyer who is knowledgeable about digital data and how to collect and produce it. Understanding exactly what the subpoena seeks will also help inform your objections to the ESI subpoena, and accordingly, to protect your client from undue burdens.

objections that fail to explain their basis, otherwise your objections may be deemed waived. Th e letter should also clearly set forth what material you are willing to search for and produce and what material you will not. In particular, an important objection to consider in federal court and in some state courts is whether the requests are proportional, e.g., whether the burden and expense of collecting and producing the requested material is likely to be bene fi cial in light of the importance of the issues in the case and the material that is likely to be produced. Other objections may include that certain requests are overly broad; impose undue burdens on your client; are vague and ambiguous; seek trade secrets or other information protected from disclosure by applicable law or as a result of a con fi den tiality agreement; seek privileged material; seek documents that are directly obtainable from a litigant to the proceeding without a need for a response from your client (a third party); and are irrelevant to any of the claims and defenses at issue in the underly ing litigation. You may also have similar objections to the time frame for certain requests or to the speci fi c ESI instructions in the subpoena such you need to discuss an appropriate ESI protocol with the issu ing party. Interposing these objections will allow your conference with opposing counsel to be informed and productive so you can attempt to narrow the subpoena. Critically, be sure to serve your response/ objection letter by the deadline—oth erwise, your objections may be deemed waived, and you may have few bases for narrowing the subpoena. Collection by a Vendor Tip 5: Engage a vendor to help collect and determine the universe of potentially responsive data. Generally, the process to collect emails and attachments with metadata intact involves exporting the custodian’s inbox to a compressed fi le (a .pst fi le) and then importing that fi le into litigation support software or a document review platform. To collect individual documents or large CBA RECORD 27