Since publishing The Sedona Principles: Best Practices Recommendations & Principles for Addressing Electronic Document Production, Public Comment Version in 2003, The Sedona Conference has been the go-to resource for guidance on legal issues relating to the discovery of electronically stored information (ESI). Sedona publications have been cited hundreds of time by courts on issues ranging from data preservation and legal holds to the use of technology-assisted review. Sedona's Working Group 1 on Electronic Document Retention and Production (WG1) is an active think-tank of jurists, attorneys, academics, consultants, and experts that regularly publishes commentaries on "tipping point" e-discovery topics. Most recently, WG1 published its updated guidance on two e-discovery topics that have challenged judges and practitioners alike: non-party discovery under Rule 45 of the Federal Rules of Civil Procedure and the admissibility of ESI evidence.

Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition

The impact of e-discovery on non-parties has been a particularly challenging issue in discovery practice. For example, as seen in a key early decision on this topic, In re Fannie Mae Sec. Litig., 552 F.3d 814 (2009), the court sanctioned a non-party federal agency for discovery actions that were "not only legally insufficient, but too little, too late," id. at 818, notwithstanding that the agency spent close to 9% of its annual budget on document review and production. This case demonstrates how non-parties held to the same standards that govern parties under the Federal Rules of Civil Procedure can find themselves subject to significant burdens and expenses even in proceedings in which they have no stake or interest in the outcome. And, especially considering the major shift toward technology outsourcing in the past decade, non-party discovery obligations could have a major impact on many companies, including those offering Cloud-based services.