Even companies that are not litigants sometimes find themselves faced with e-discovery obligations owing to receipt of third-party subpoenas issued under Rule 45 of the Federal Rules of Civil Procedure. In such circumstances, companies often assumed that courts would treat them favorably with respect to discharging their e-discovery obligations. A recent federal court decision should serve as a wake-up call to companies that find themselves on the receiving end of a subpoena, as courts may very well hold them to the same standard as parties and require prompt and complete compliance with such subpoenas.

'St. Jude'

In St. Jude Medical S.C. v. Janssen-Counotte,¹ the U.S. District Court for the District of Oregon was asked to rule on a motion to compel compliance with a third-party subpoena. In the principal case pending before another court,² St. Jude, a medical technology company, sued Louise Marie Janssen-Counotte (Janssen), a former employee in its Belgium and Netherlands offices, for “theft and threatened misappropriation of trade secrets and other confidential information.”³

Acting on suspicions regarding Janssen's behavior before leaving the company, St. Jude conducted an internal investigation, which revealed that Janssen negotiated her new employment and made preparations to misappropriate confidential information while still employed by St. Jude. Evidence of Janssen's alleged misappropriations included: (1) her attendance at a three-day conference in Dallas, where she learned about St. Jude's five-year global strategic plan to compete against other medical technology companies, without having disclosed her ongoing employment negotiations with one of St. Jude's competitors,⁴ (2) “email[ing] her St. Jude contracts and benefits information to her personal email address,”⁵ and (3) her “insert[ion of] 41 separate removable media devices (e.g., thumb drives) into her St. Jude computer.”⁶