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The first four articles in this six-part series have focused on when a company can be ordered to preserve and/or produce documents of a third party. In the final two segments, we shift gears to discuss the timing of third party discovery. Rule 45, which governs subpoenas, has recently changed, but one thing remains the same: Courts are reluctant to impose unnecessary burdens on third parties when it comes to discovery unless it is shown that a party controls the third party’s documents. In practice, this often means that discovery from third parties must wait until the parties have exchanged all the information they have in their own files, virtual and otherwise.

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