When your team receives a third-party subpoena, your first instinct might be to see if the parties' ESI Protocol offers any flexibility. That instinct could lead to costly mistakes.
The Burge v. Teva Pharmaceuticals Industries, Ltd. ruling highlights this issue: an ESI Protocol negotiated between litigants doesn't automatically apply to you as a non-party. The law firm Goodwin discovered this when it redacted non-responsive email portions under an ESI Protocol provision, only to have the court reject the redactions and order an in-camera review. The court's reasoning was clear: the protocol applied to "parties," and Goodwin wasn't one.
This mistake is common and stems from a misunderstanding of discovery obligations for non-parties. Let's examine the errors that can turn routine subpoena responses into costly disputes.
Why These Mistakes Keep Happening
ESI Protocols are detailed documents negotiated between parties. When you're served with a subpoena in a case where one exists, it's easy to assume the protocol governs your response. After all, the protocol outlines the specifications for document production during discovery.
However, protocols are contracts between parties. You didn't negotiate them, nor did you agree to their search terms, definitions of responsiveness, or redaction permissions. Courts treat you differently because your obligations come from Federal Rule of Civil Procedure 45, not from Rule 34 or the parties' agreements.
Confusion arises because some protocol provisions do affect you (like technical specifications for production format), while others don't (like negotiated limitations on scope). Mistakes occur when teams cherry-pick favorable provisions without recognizing that courts won't allow them to have it both ways.
Mistake 1: Treating Protocol Redaction Rights as Universal
Why it happens: The ESI Protocol in Burge stated that a "Producing Party may redact the non-responsive portion(s) of the document provided that the redactions do not obscure the meaning of the responsive portions of the document." This language sounds broad.
The consequence: Goodwin redacted non-responsive portions of email strings, arguing the protocol allowed it. The court disagreed, noting that even if the protocol applied to non-parties, the redaction provision only covered "parent emails" in responsive families. Goodwin's redactions didn't qualify. The court ordered an in-camera review, adding time, cost, and scrutiny to what Goodwin thought was a straightforward production decision.
The fix: Don't redact for non-responsiveness unless you're prepared to defend it under Rule 45 standards, not the parties' protocol. If you believe certain information falls outside the subpoena's scope, communicate with the requesting party before producing redacted documents. Document your position in writing. If you can't reach an agreement, file a motion to quash or modify the subpoena under Rule 45(d)(3). Redacting first and justifying later puts you in the weakest procedural position.
Mistake 2: Selectively Invoking Protocol Provisions
Why it happens: You want the benefits of negotiated limitations (like search term lists or date ranges) without the burdens (like broad definitions of responsiveness or expensive processing requirements).
The consequence: Goodwin argued that the protocol's search term negotiation provisions didn't apply to it as a non-party, but its redaction permissions did. The court called this out as contradictory. When you pick and choose which protocol provisions to follow, you undermine your credibility and invite closer judicial review of every production decision you make.
The fix: Treat the ESI Protocol as guidance, not authority. If a protocol provision makes practical sense for your response (like producing in TIFF format with load files), adopt it and note that you're doing so for consistency with the parties' workflow. If a provision creates obligations you can't meet or rights you want to claim, don't reference the protocol at all. Base your response on Rule 45, your own document review standards, and direct communication with the requesting party.
Mistake 3: Assuming "Producing Party" Includes You
Why it happens: Protocol language often uses defined terms like "Producing Party" without explicitly limiting them to named litigants. You read "Producing Party" and think, "Well, I'm producing documents, so that must include me."
The consequence: Courts interpret contracts based on context and party intent. An ESI Protocol is a discovery agreement between litigants who will be producing documents to each other throughout the case. When the protocol says "Producing Party," it means the parties who negotiated and signed it. Your subpoena response doesn't make you a party to their agreement.
The fix: Read the protocol's preamble and signature blocks. If you're not listed, you're not bound. If you want the protection of specific protocol provisions, negotiate a separate agreement with the requesting party that incorporates those terms by reference. Get it in writing before you produce anything. A confirming email that says "Non-party XYZ will produce documents consistent with the format specifications in the parties' ESI Protocol dated [date], Sections 4.2-4.5" creates a limited, express agreement that a court can enforce.
Mistake 4: Ignoring the Parent Email Distinction
Why it happens: Modern email production involves threading, families, and parent-child relationships. When a protocol mentions "parent emails," you might assume it's just technical jargon that doesn't affect your redaction rights.
The consequence: The Burge protocol allowed redactions for "parent emails that are part of responsive families" where the parent itself was non-responsive. This is a narrow exception: it assumes you're producing email families, that you've identified responsive children, and that you're only redacting the non-responsive parent to avoid producing duplicative or irrelevant conversation starters. Goodwin's redactions apparently didn't fit this pattern, which is why the court rejected them even under the protocol's own terms.
The fix: If you're going to redact emails, understand email family structures first. A parent email is the first message in a thread. A child is a reply. An inclusive is the last message in a chain that contains all prior content. If you produce inclusives only (a common approach), you're not producing parent emails separately, so the parent-redaction exception doesn't apply. If you produce full families, you can redact non-responsive parents only if the children are responsive and the redaction doesn't obscure context. Document your email processing methodology in a declaration before you produce. Don't retrofit your explanation after someone challenges your redactions.
Mistake 5: Failing to Negotiate Upfront
Why it happens: You receive a subpoena, you review documents, you produce. Negotiation feels like delay or resistance, and you want to avoid looking obstructive.
The consequence: By the time Goodwin's redactions were challenged, it was already in a defensive posture. The court had to order an in-camera review. If Goodwin had raised the redaction issue before producing, it could have either gotten agreement, modified its approach, or filed a motion to quash the specific portions of the subpoena it found overbroad. Instead, it produced redacted documents, triggered a dispute, and lost.
The fix: Before you produce anything, send a meet-and-confer letter to the requesting party. Outline your understanding of the subpoena's scope, your proposed search methodology, your production format, and any limitations you believe are appropriate (like redactions for privilege, privacy, or non-responsiveness). Reference Rule 45(d)(2)(B), which allows you to object to a subpoena or claim privilege. Give the requesting party a deadline to respond. If they disagree, you can file a motion to quash or modify under Rule 45(d)(3)(A) before the production deadline. This procedural sequence protects you far better than producing first and defending later.
Prevention Checklist
Before responding to any third-party subpoena in a case with an ESI Protocol:
- Read the protocol's preamble and signature blocks to confirm you're not a signatory
- Identify which protocol provisions are technical specifications (format, metadata fields) versus negotiated limitations (search terms, redaction rights)
- Draft a meet-and-confer letter outlining your proposed response methodology
- If you want to adopt any protocol provisions, request written agreement from the requesting party that incorporates those specific sections
- If you believe the subpoena is overbroad, object in writing under Rule 45(d)(2)(B) before the production deadline
- If you plan to redact anything other than privileged information, explain your basis in advance and seek agreement
- Document your email processing methodology (threading, deduplication, family structure) in a declaration
- Never cite the parties' ESI Protocol as independent authority for your production decisions
- If you can't resolve a dispute, file a motion to quash or modify under Rule 45(d)(3)(A) rather than producing and hoping for the best
The Burge ruling isn't an outlier. Courts consistently hold non-parties to Rule 45 standards, not to agreements they didn't negotiate. Your strength comes from early communication, clear documentation, and procedural discipline, not from borrowing language from someone else's protocol.
