[Panel 5] Addressing Privacy Issues in Non-Party Discovery

Federal Rule of Civil Procedure 45 and its state rule equivalents provide a mechanism to obtain discovery from non-parties. This is particularly important in eDiscovery, as it is common for relevant electronically stored information (ESI) to be held by non-parties. Although the Rule has been amended several times and is generally interpreted and applied in harmony with the broader rules of discovery, it is not as explicit in terms of negotiation and cooperation as Rules 26 and 34. This means that parties and non-parties must work with the Court on a case-by-case basis to address issues of scope, proportionality, form of production, burdens, and cost shifting. And because this method of discovery involves non-parties who often have little or no stake in the outcome, their privacy and security concerns are at the forefront. What options are available to requesting parties, responding non-parties, and the Court to protect a non-party’s heightened privacy and confidentiality interests when served with a Rule 45 subpoena?