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Preservation Considerations when Representing Third Party Subpoena Recipients

by Chioma Deere, Esq., CEDS, Williams, Leininger & Cosby, P.A.

Attorneys may represent their clients in the limited circumstances of responding to a served subpoena.  In those cases, preservation subpoenas should be treated as though it is a standard discovery request, with an explanation to the client about the scope and parameters of their obligations to preserve and respond to the subpoena.  Most importantly, it should be noted that this type of request has a start and end time.  Preservation procedures and response to the subpoena, including production of any responsive materials, are all required when representing a party under these circumstances.

Florida Courts have established that under the Rules of Civil Procedure subpoena rule, there is a duty to preserve evidence upon a properly served discovery request such as a subpoena.  However, there is a big difference in the preservation obligation of a party and a non-party. For a non-party, this duty ends upon compliance with the subpoena.

The most recent case affirming this standard is the Fifth DCA case, Shamrock-Shamrock, Inc. v. Remark, 271 So.3d 1200 (Fla. 5th DCA 2019). In that matter, the Plaintiff, a party to an underlying case, brought a separate cause of action for spoliation against Remark for destruction of evidence prior to Shamrock serving Remark with a subpoena.  The Court declined to extend the preservation duty to foreseeability or anticipation of litigation for third parties but reiterated the following:

As to duty, Florida courts have held a duty may arise in third-party spoliation cases based on the existence of a contract, statute, or properly served discovery request. See, e.g., Gayer, 970 So. 2d at 426 (“Because a duty to preserve evidence does not exist at common law, the duty must originate either in a contract, a statute, or a discovery request.” (citing Royal & Sunalliance v. Lauderdale Marine Ctr., 877 So. 2d 843, 845 (Fla. 4th DCA  2004))). However, neither the Florida Supreme Court nor Florida’s intermediate appellate courts have imposed a common law duty on a third party to preserve evidence based on foreseeability, or even actual knowledge, of litigation.

Shamrock-Shamrock, Inc., 271 at1201  (emphasis added).  The Fifth DCA in Shamrock went on to reason that there are measures parties can take to enforce a duty to preserve in support of a finding that no third-party anticipation of litigation duty to preserve exists:

Florida courts have recognized an independent cause of action for spoliation of evidence against third parties that accrues when a person or entity, though not a party to the underlying action causing the plaintiff’s injuries or damages, loses, misplaces, or destroys evidence critical to that action.[1] See, e.g., Gayer v. Fine Line Constr. & Elec., Inc., 970 So. 2d 424 (Fla. 4th DCA 2007) (holding that special employer had duty under workers’ compensation law to preserve evidence for injured laborer’s claim against third-party tortfeasor based on section 440.39(7), Fla. Stat.).

Shamrock-Shamrock, Inc., 271 So.3d at 1200.  Therefore, the preservation duty is short-lived in a third-party subpoena situation. The caveat is that the duty ends upon full compliance, that is, after all objections have been ruled or agreed upon, with the subpoena or discovery requests. 

The Florida standard above is supported by the federal subpoena rule and case law along the same lines. Federal rules and case law regarding ESI and preservation are persuasive in Florida courts. The Sedona Conference’s Commentary on Rule 45 Subpoenas to Non-Parties (August 2020) explains the duration of this duty regarding preservation to third parties:

[A] subpoena imposes an obligation on the non-party to ensure documents responsive to the subpoena are not destroyed pending compliance with the subpoena, the nature and extent of the obligation varies depending on the facts and circumstances presented. In most cases, receipt of a properly served subpoena only obligates a non-party to take reasonable steps to produce the requested materials. The subpoena does not obligate the non-party to initiate a formal legal hold process. What is required is to ensure that materials are retained until there is compliance. Absent a contractual or other special obligation, a non-party has no duty to preserve information after it has complied with the subpoena.

The Sedona Conference, Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition, 22 SEDONA CONF. J. 1 (forthcoming 2021), p. 39 (emphasis added.).

The formal legal hold process referenced in the paragraph above appears to refer to the duty of the third party to preserve based on foreseeability of the need for the evidence and steps taken to stop destruction prior to being served with a subpoena.  The duty merely triggers when the subpoena is received and ends when compliance has occurred, however long that takes.

There are many cases referred to in the Rule 45 Sedona Conference Commentary for the proposition that a legal preservation obligation only exists during the pendency of compliance with a duly served subpoena. The preservation connection between service of the subpoena and compliance is that the subpoena is paramount to a court order and sanction that can follow if violated. 

Florida Rule of Civil Procedure 1.410 (f) states: “Contempt. Failure by any person without adequate excuse to obey a subpoena served on that person may be deemed a contempt of the court from which the subpoena issued.” Similarly, FRCP Rule 45(g) provides that the court “may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.” Since properly served subpoenas have the effect of a court order, contempt sanctions are the logical remedy for the failure to comply, including failure to preserve documents. 

Beyond the preservation obligation in the Florida and Federal Rules of Civil Procedure, attorneys representing the served third party also have the ethical duties under Florida Rules of Professional Conduct to inform their client of this preservation obligation. Attorneys are held to the ethical Rules related to communicating information to our clients to make informed decisions. (Fla. R. Civ. P.4-1.4 (b)) As attorneys are also required not to obstruct another party’s access to evidence relevant to the case, and it may be argued that we have done that by not specifically informing our clients to preserve relevant evidence, including ESI. (Fla. R. Civ. P. 4-3.4 (a))

Lastly, a lawyer is also required to provide competent representation to clients.  The Rule requires: “A lawyer must provide competent representation to a client. Competent representation requires the legal knowledge, skill, thoroughness, and preparation reasonably necessary for the representation . . . . To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, engage in continuing study and education, including an understanding of the benefits and risks associated with the use of technology . . . .”  Rule 4-1.1 (Client-Lawyer Relationship – Competence) (Adopting the ABA Model Rule 4-1.1).

The Florida Bar’s closest Ethics Opinion on ESI and preservation appears to be related to advising a client to make their social media page private.  The Florida Bar’s Professional Ethics Committee in Advisory Opinion 14-1 was careful to add an important caveat: “[p]rovided that there is no violation of the rules or substantive law pertaining to the preservation and/or spoliation of evidence.”  The attorney was allowed to advise the client to make any change to social media information only after the ESI has been fully preserved and not in violation of any other law. 

Gordon Calhoun recently noted that the ethical obligation regarding preservation should also be considered with the following points:

Lawyers must also be sensitive to the unique challenges ESI can create for the joint responsibility of client and counsel to preserve potentially relevant documents. These include:

(1) documents can disappear;

(2) computers and servers can disappear, particularly when virtual devices are involved;

(3) files, documents, and computers can be corrupted or hacked;

(4) documents can and will be changed by routine operations, including accessing them through the operating system and use of utilities to maintain the network or hard drive;

(5) privileged documents may be shared more widely, which creates a real risk of waiver by excessive disclosure;

(6) large amounts of data can be lost inadvertently through the routine operation of automated document retention and deletion protocols;

(7) multiple copies of documents are likely to exist creating a risk of inconsistent treatment of data in large cases, particularly when multiple persons are making determinations of relevance and privilege; and

(8) metadata must be preserved in most cases, not because it is relevant to the merits, but because it facilitates use of analytic software to speed the review process and an increasing number of courts are adopting anti degradation standing orders, which are violated if metadata is not collected or altered during collection.

Reduce Cost and Risk During Discovery – Defense Counsel’s Ethical Duty to Master eDiscovery, Gordon Calhoun (2016 CLM Annual Conference, Orlando FL) page 6.

Preservation requests and reminders from attorneys should be in writing to ensure that the client has clear instructions of their preservation obligations related to the specific case, what their duties under the obligations are. The attorney should give the client a specific starting point to answer questions about how to preserve, especially when it deals with ephemeral data, such as social media messes, that can be easily destroyed unintentionally.

Verbal preservation or litigation hold requests do not sufficiently meet this obligation to advise client on preservation and ensure relevant evidence is not destroyed.  As attorneys and counselors, we are also expected to have knowledge about our client’s retention policies (especially if they are in writing), and auto-delete features in sources such as phones and emails, to ensure that relevant documents to the case are not in line for destruction.

Even in the narrow preservation obligation of  a third party in response to a subpoena, the best practice and ethical obligation is to give the client a roadmap to comply with rules and substantive laws pertaining to the preservation and/or spoliation of evidence.

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