One of the single oft heard complaints from corporate clients are "why should my company have to incur discovery expenses when we are not even being sued?" Both the Federal and State court rules provide for mechanisms to protect companies and individuals who are not parties to a litigation from broad-based and intrusive subpoenas. Even so, the exercise of such mechanisms require an expenditure of internal and external resources that can quickly and easily blow your litigation budget out of the water.

Because Court rules provide greater protection to non-parties than provided to litigants themselves, it is imperative to move quickly – sometimes within days — with the following tips in mind:

  1. Determine whether your organization will be able to respond within the time necessary. If not, by all means, request an extension.
  2. Identify the location and format of the responsive information (i.e., electronically stored data, or . . . micro-fiche), as well as the burden associated with obtaining this information.

    With the onset of e-discovery, this is not an easy task. But better to ensure these preliminary hurdles are covered, rather than be surprised later once your company has committed to provide all emails from 2000 to the present.
  3. Assess whether all or even some of the costs of the production could be shifted to the party who is seeking the information – such as pursuant to Fed. R. Civ. Pro. 45 or New Jersey statutes, such as the cost-shifting statute specific to banking institutions.
  4. Determine who is best suited to prepare the response. With sky-rocketing litigation expenses, it is imperative to understand the capabilities of your internal staff to more effectively reduce the costs attributable to outside counsel.

    For example, your company may be able to provide data mapping and a data/document retention schedule to outside counsel and should do so immediately. While this might require an initial investment of time and resources, this information can be reused for each subsequent subpoena.

By planning ahead and acting quickly to address the potential (and likelihood) of the dreaded subpoena, your legal department will be poised to maintain litigation expenses within the confines of its projected budget.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.