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A lot of people seem confused by the idea that a party can request personal documents someone else has. Just like in criminal land, civil land has subpoenas. P

A lot of people seem confused by the idea that a party can request personal documents someone else has. Just like in criminal land, civil land has subpoenas. Parties can issue subpoenas for most things to other parties. In federal court, civil subpoenas are covered by Federal Rules of Civil Procedure rule 45. https://www.law.cornell.edu/rules/frcp/rule_45 https://www.law.cornell.edu/rules/frcp/rule_45 Outside of the exceptions listed, yes, you would be required to produce information you have.

kelnos 10y ago
I think also in this case it's a matter of Uber telling its employees, "hey, if you have any of this stuff on your personal laptops, you'd better give it to us" (with the perhaps-implicit "or we might fire you" on the end of it). Two of the employees are playing ball, but Levandowski has clammed up (and Uber, to the judge's amusement, is allowing him to do that without repercussions).
- DannyBee 10y ago
  Uber firing you may not be the worst of it. You can end up in jail for contempt until you comply: "The rule is also amended to clarify that contempt sanctions may be applied to a person who disobeys a subpoena-related order, as well as one who fails entirely to obey a subpoena. In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena. Often contempt proceedings will be initiated by an order to show cause, and an order to comply or be held in contempt may modify the subpoena's command. Disobedience of such an order may be treated as contempt" Obviously, can't hold you in contempt (or at least, can't punish you) if you validly took the 5th, but ...
DannyBee 10y ago
(sorry, i also said "to other parties". You can subpoena non-parties as well, as the advisory committee comments explain)
clubm8 10y ago
Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices? Or is simply working for a company being sued sufficient to be compelled to produce my personal devices? For example, if I stated that my personal phone does not contain any work accounts, and does not access the work network, instead relying on 4G? Or would I have to leave my smartphone at home? Or would not even that be sufficient? :/ This entire concept is deeply troubling to me.
- DannyBee 10y ago
  "Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices?" If it's fishing, you can push back. If it's reasonably targeted to result in actionable evidence, probably not :) "Or is simply working for a company being sued sufficient to be compelled to produce my personal devices?" Probably not quite without a good reason. To be clear, it's not just companies. If you were, for example, getting divorced, acrimoniously, expect to have your personal devices subpoenaed (my ex was a family lawyer, this happened all the time) "This entire concept is deeply troubling to me." Remember that the goal of the civil justice system is not to let people hide things. They just want to resolve the disputes. The best way is "put all evidence and cards on table". So they try to do that. In cases where it is embarrassing or whatever, you can get protective orders on who may have access, etc. But you should fully expect, in any lawsuit, company, your neighbor, whoever, that if they have good reason to believe you have relevant evidence on your personal device, you'll be forced to produce it. If you don't have relevant evidence, i would push back hard. But also note. Misuse is strongly actionable: "(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply. ... Paragraph (c)(1) gives specific application to the principle stated in Rule 26(g) and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. v. Farmingdale Classroom Teach. Ass'n, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), and the duty of the attorney to the non-party is also embodied in Model Rule of Professional Conduct 4.4. The liability of the attorney is correlative to the expanded power of the attorney to issue subpoenas. The liability may include the cost of fees to collect attorneys’ fees owed as a result of a breach of this duty."

kelnos 10y ago

I think also in this case it's a matter of Uber telling its employees, "hey, if you have any of this stuff on your personal laptops, you'd better give it to us" (with the perhaps-implicit "or we might fire you" on the end of it). Two of the employees are playing ball, but Levandowski has clammed up (and Uber, to the judge's amusement, is allowing him to do that without repercussions).

DannyBee 10y ago
Uber firing you may not be the worst of it. You can end up in jail for contempt until you comply: "The rule is also amended to clarify that contempt sanctions may be applied to a person who disobeys a subpoena-related order, as well as one who fails entirely to obey a subpoena. In civil litigation, it would be rare for a court to use contempt sanctions without first ordering compliance with a subpoena, and the order might not require all the compliance sought by the subpoena. Often contempt proceedings will be initiated by an order to show cause, and an order to comply or be held in contempt may modify the subpoena's command. Disobedience of such an order may be treated as contempt" Obviously, can't hold you in contempt (or at least, can't punish you) if you validly took the 5th, but ...

DannyBee 10y ago

(sorry, i also said "to other parties". You can subpoena non-parties as well, as the advisory committee comments explain)

clubm8 10y ago

Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices? Or is simply working for a company being sued sufficient to be compelled to produce my personal devices? For example, if I stated that my personal phone does not contain any work accounts, and does not access the work network, instead relying on 4G? Or would I have to leave my smartphone at home? Or would not even that be sufficient? :/ This entire concept is deeply troubling to me.

DannyBee 10y ago
"Is there anything one can do to reduce the risk of a disovery fishing request on my personal devices?" If it's fishing, you can push back. If it's reasonably targeted to result in actionable evidence, probably not :) "Or is simply working for a company being sued sufficient to be compelled to produce my personal devices?" Probably not quite without a good reason. To be clear, it's not just companies. If you were, for example, getting divorced, acrimoniously, expect to have your personal devices subpoenaed (my ex was a family lawyer, this happened all the time) "This entire concept is deeply troubling to me." Remember that the goal of the civil justice system is not to let people hide things. They just want to resolve the disputes. The best way is "put all evidence and cards on table". So they try to do that. In cases where it is embarrassing or whatever, you can get protective orders on who may have access, etc. But you should fully expect, in any lawsuit, company, your neighbor, whoever, that if they have good reason to believe you have relevant evidence on your personal device, you'll be forced to produce it. If you don't have relevant evidence, i would push back hard. But also note. Misuse is strongly actionable: "(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney's fees—on a party or attorney who fails to comply. ... Paragraph (c)(1) gives specific application to the principle stated in Rule 26(g) and specifies liability for earnings lost by a non-party witness as a result of a misuse of the subpoena. No change in existing law is thereby effected. Abuse of a subpoena is an actionable tort, Board of Ed. v. Farmingdale Classroom Teach. Ass'n, 38 N.Y.2d 397, 380 N.Y.S.2d 635, 343 N.E.2d 278 (1975), and the duty of the attorney to the non-party is also embodied in Model Rule of Professional Conduct 4.4. The liability of the attorney is correlative to the expanded power of the attorney to issue subpoenas. The liability may include the cost of fees to collect attorneys’ fees owed as a result of a breach of this duty."