Discovery; measuring a subpoena's reach

Article Abstract:

Rule 4 of the Federal Rules of Civil Procedure addresses the court's reach as to the parties whom it may wish to subpoena, while Rule 45 addresses the inconvenience to nonparties. The 1991 amendments to Rule 45 seriously undercut the logic of providing equal treatment to parties and nonparties. The 1991 amendments made it mandatory, not discretionary, to condition the enforcement of a subpoena on the requesting party's payment of the nonparty's cost of production. The amendments make clear the importance of protecting the interests of the nonparty.

Subpoena

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Federal practice; discovery

Article Abstract:

Few lawyers will spend a whole career in commercial litigation without encountering the problem of inadvertent document production. A lawyer who receives a document that appears to be inadvertently produced should promptly notify adversary counsel, but is not obliged to return all copies or to destroy them. Case law permits the attorney to test whether the inadvertent production is important enough to require the document's disclosure. The attorney should also have the right to keep the document until able to obtain a ruling.

Remedies, Computer hackers, Confidential communications, Attorney-client privilege

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Discovery; supplementing responses

Article Abstract:

Federal Rule of Civil Procedure 26(e) requires that parties continue supplementing discovery requests "seasonably," so attorneys' discovery obligations never end with discovery cutoff. Rule 26(e) was amended to impose a duty to supplement in 1970. At first this was a limited duty, but as of the 1993 amendments the duty to supplement required attorneys to supplement previous production, even if it was merely "incomplete," not only to correct errors.

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