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How Early is Too Early to Serve Subpoenas for E-Discovery to Third Party Service Providers?

Created on December 1, 2011

Vice President, E-Discovery

In today's digital age, text messages, cell phones and email are the primary form of an average person's daily communications. Often then during tort cases, such as personal injury or wrongful action claims, these type of communication records can be vital for a party to prove or defend against liability. To safeguard and protect against the destruction of evidence, parties must take measures to ensure that potentially relevant records, including those generated on electronic communication services providers, are preserved. Questions have arisen before the courts as to when parties can serve subpoenas to these third-party providers. How early is too early?

Dockery v. Horvath, S.D. Miss. Oct. 2011 provides some guidance on this issue. The court concluded that early discovery on a third-party electronic communication service provider may only be granted when there is a showing of good cause by the moving party.

In this alienation of affection case, the plaintiff, Dockery, motioned the court for permission to serve subpoenas to third-party electronic service providers prior to Rule 26(f) meet and confer conferences in order to obtain and preserve electronic evidence, such as text messages, email and cell phone records. Under FRCP 26(d) (1), in most cases “a party may not seek discovery from any source before the parties have conferred as required by Rule 26(f)" unless the party shows “good cause." In denying plaintiff's motion, the court deemed that the plaintiff offered no showing that evidence would be lost, stating “the assertions in his motion are supported only by understanding and belief, and are vague and conclusory at best."

Aside from proving good cause, moving parties must also be aware that another obstacle may stand in their way of collecting information from specific third-party electronic communication providers like Facebook, Gmail and Yahoo. Under the Electronic Communications Privacy Act (ECPA), “a person or entity providing an electronic communication service to the public shall not knowingly divulge to any person or entity the contents of a communication while in electronic storage by that service."

Being proactive in identifying relevant electronically stored information (ESI) is a must. As Dockery indicates, it's equally as important to know and understand the e-discovery rules that may impact a particular matter and how to efficiently navigate them.

Mike Hamilton, J.D. is the E-Discovery Market Analyst at Exterro, Inc. Hamilton works in a product management and marketing role to ensure Exterro's Fusion e-discovery applications closely reflect the needs of legal teams. Within the complex e-discovery world, Hamilton's knowledge, legal acumen and experience give him a valuable perspective on bridging the gap between IT and legal teams.