Legal area: Commercial Litigation

Task:
You are an associate attorney at a large law firm, who has been assigned to a new matter involving a contractual dispute between two AI companies. You represent Brightmind AI ("Brightmind"), who is the defendant in a civil litigation matter brought by plaintiff Orion AI ("Orion"). The two companies previously entered into a data-sharing agreement, but disagreements between the parties ensued, leading to the current litigation. The matter has been filed in federal district court, in the Southern District of New York.

While conducting your investigation into the facts behind the dispute, you learn that two third parties may have information relevant to the dispute. Specifically, third-party XYZ, Inc. ("XYZ") is an IT vendor used by Orion. Information you learn during your investigation leads you to believe that Orion may have shared certain proprietary data owned by Brightmind with XYZ, in contravention of the agreement between the two parties stating that this proprietary information was being shared with Orion solely for the purposes outlined in the agreement, and was not to be shared with any other third party. You learn that IT vendor XYZ may also work with other competing AI companies, so your client Brightmind is naturally concerned about XYZ potentially having access to this proprietary data.

You also learn that Orion may have shared this same proprietary data with ABC AI. ("ABC"). ABC is another AI company, and a competitor of Brightmind. Based on your information, it appears that Orion may have had some undetermined contractual relationship with ABC. A witness you speak to as part of your investigation (a former employee of ABC) tells you that they previously had access to this Brightmind proprietary data.

You inform the senior partner handling the matter of your findings relating to these two third parties. He thanks you and tells you that he will handle the outreach to these two companies to ensure that they retain any documents relevant to the litigation matter.

With respect to XYZ, the senior partner picks up the phone on May 17, 2026 and calls an attorney at a different law firm, whom he knows represents XYZ. The senior partner informs that attorney that his client Brightmind believes that XYZ is in possession of documents relevant to Brightmind's dispute with Orion, that Brightmind plans to issue a Rule 45 subpoena to XYZ commanding it to produce such documents at some point in the future, and that in the meantime XYZ should consider itself on notice to preserve all such relevant documents.

With respect to ABC, the senior partner seeks leave from the district court to issue a "preservation subpoena" to ABC, instructing ABC to preserve all ESI relevant to its contractual relationship with Orion, including any Brightmind proprietary information that may have been shared with Brightmind. The senior partner explains to the court that commencement of discovery in the matter is likely to be delayed for several months, given ongoing motion practice relating to non-discovery issues. The district court agrees with the senior partner's arguments, and grants Brightmind's motion to issue a preservation subpoena to ABC on June 2, 2026.

Several months later, discovery commences in the _Orion v. Brightmind_ matter. On January 7, 2027, Brightmind issues formal Rule 45 subpoenas to XYZ and ABC.

The subpoena to XYZ commands the IT vendor to produce "all communications between Orion and XYZ relating to Brightmind, including, but not limited to, any Brightmind data shared with XYZ."

The subpoena to ABC commands the AI company to produce "all documents relating to ABC's relationship with Orion," as well as "all communications between Orion and ABC relating to Brightmind."

On January 17th, the same senior partner representing Brightmind receives a phone call from the same attorney for XYZ that he spoke with back in May. The XYZ attorney informs the senior partner that he is in receipt of the subpoena, and that he believes any such documents previously in the possession of XYZ may no longer exist. The attorney explains that the communications between Orion and XYZ relating to Brightmind all occurred in September and October 2025, that XYZ has a one-year auto retention policy for all emails on its email server, and that any such communications would likely have been auto-deleted sometime in the fall of 2026.

Later that day, the senior partner representing Brightmind receives a phone call from a different attorney, who represents ABC. This attorney informs the senior partner that ABC objects to the subpoena as overbroad. The attorney further states that ABC is nonetheless willing to produce documents relevant to the second document request in the subpoena ("all communications between Orion and ABC relating to Brightmind"), but requests that Brightmind pay the "significant expenses" that will be required for ABC to comply with the subpoena. The senior partner representing Brightmind refuses, and the other attorney states that ABC will likely then file a motion to quash the subpoena, or alternatively to require Brightmind to pay the costs required for ABC to comply with the subpoena.

The senior partner calls you into the office and asks you to draft a memorandum discussing the following:

1. Does Brightmind have a valid spoliation claim against XYZ; and if so, what legal arguments provide the best case for Brightmind?
2. What legal arguments can Brightmind assert to oppose the likely motion to quash the subpoena issued to ABC?
3. If Brightmind prevails on its opposition to ABC's presumed motion to quash the subpoena, what is the likelihood that it will be forced to pay the costs incurred by ABC to respond to the subpoena?

In preparing the memorandum, please provide a structured argument that identifies which sources support specific claims, explains how conflicts between authorities should be resolved, and states which underlying assumptions are being made. Please analyze any relevant case law under Second Circuit precedent, while also considering relevant persuasive authority from other jurisdictions. Please keep the memo under 4,000 words.

Reference answer:
**I. Introduction**

This memorandum discusses the legal issues raised by the document subpoenas our client, Brightmind AI ("Brightmind") has issued to third parties XYZ, Inc. ("XYZ") and ABC AI ("ABC") in the _Orion v. Brightmind _litigation matter.

As you know, XYZ is an IT vendor used by plaintiff Orion AI ("Orion"), while ABC is an AI company and a competitor to Brightmind. Based on facts developed during our investigation, we believe that Orion may have shared Brightmind proprietary data with both third parties, in violation of the data-sharing agreement between Brightmind and Orion. On behalf of Brightmind, we have issued subpoenas to both third parties under Federal Rule of Civil Procedure 45(a)(1)(D) seeking the following information:

- With respect to XYZ, we have requested "all communications between Orion and XYZ relating to Brightmind, including, but not limited to, any Brightmind data shared with XYZ;" and
- With respect to ABC, we have requested "all documents relating to ABC's relationship with Orion," as well as "all communications between Orion and ABC relating to Brightmind."

The attorney representing XYZ has informed us that any such documents previously possessed by XYZ may no longer exist, as they would have been subject to XYZ's one-year auto-deletion policy. The attorney representing ABC has stated that ABC objects to the subpoena as overbroad, but may be willing to produce relevant documents relating to Orion and ABC's Brightmind-related communications if Brightmind agrees to pay the "significant expenses" that will be required for ABC to comply with the subpoena.

Several issues are raised by XYZ's position, including issues relating to preservation obligations of third parties and spoliation, as well as possession, custody, and control of discoverable ESI. ABC's position on the subpoena likewise raises issues of burden and proportionality, as well as cost-shifting for third party subpoenas. This memorandum analyzes these issues and addresses the likelihood of Brightmind's position prevailing with respect to these two subpoenas.

**II. The XYZ Subpoena**

**A. As a General Rule, Third Parties Are Under No Obligation to Preserve ESI Relating to the _Orion v. Brightmind_ Matter Before Receiving a Document Production Subpoena.**

In general, parties to a litigation matter are obligated to preserve evidence when they have "notice that the evidence is relevant to litigation or when a party should have known that the evidence may be relevant to future litigation.” _Fujitsu Ltd. v. Fed. Express Corp._, 247 F.3d 423, 436 (2d Cir. 2001). However, XYZ is not itself a party to this matter, but is a third party in receipt of a document subpoena.

The issue of _preservation obligations_ of a third-party subpoena recipient comes up much less frequently than the issue of their production obligations, so there very little Second Circuit-specific precedent on this topic. As a general rule, though, a third party in possession of information relevant to a legal matter is under no common law obligation to preserve the information. _See_ _TracFone Wireless Inc. v. SCS Supply Chain LLC_, 330 F.R.D. 613, 615 (S.D. Fla. 2019) ("...third parties potentially in possession of relevant information are under no duty to preserve that information."); _see also Federal Trade Commission v. F&G Int'l Group Holds., LLC_, 339 F.R.D. 325 (S.D. Ga. 2021) ("As the [plaintiff] rightly points out, these customers, as third parties to this dispute, are under no obligation to preserve their ESI.").

**B. Our Verbal Preservation Request to XYZ in May 2026 is Likely Insufficient to Create a Legal Preservation Duty for XYZ.**

In this matter, an attorney from our firm spoke to an attorney representing XYZ on May 17, 2026, and verbally informed the attorney that XYZ should "consider itself on notice" to preserve all documents potentially relevant to Brightmind's dispute with Orion. Following that interaction, our next contact with XYZ occurred on January 7, 2027, when we issued the Rule 45 document production subpoena to XYZ. Given the representation from XYZ's attorney that XYZ had a one-year auto-deletion retention policy for its emails, and his further representation that the communications between Orion and XYZ relating to Brightmind all occurred in September and October 2025, it appears that any such relevant emails would have been deleted from XYZ's servers in or around September and October 2026, which falls in the interim between the May 2026 verbal preservation request and the January 2027 document subpoena.

The legal issue raised here is whether the verbal preservation request in May 2026 was sufficient to create a duty for XYZ to preserve relevant materials. Unfortunately, existing precedent makes it fairly clear that a verbal preservation request by itself is insufficient to impose a legal duty of preservation on a third party. As a general matter, a written or oral preservation demand to a third party creates no duty for that third party to produce materials. Second Circuit courts and courts in other jurisdictions have previously held that "[t]he only thing that is certain is that without preservation subpoenas, the third party corporations in possession of potentially relevant information are free to destroy that information.” _Koncelik v. Savient Pharms., Inc._, No. 08 Civ 10262, 2009 WL 2448029, at \*2 (S.D.N.Y. Aug. 10, 2009). _See also Caston v. Hoaglin, C.A._ No. 2:08 CV-200-NMK, 2009 WL 1687927, at \* 4 (S.D. Ohio June 12, 2009) (finding that “an informal conversation asking non-parties to preserve certain documents lacks the force of a subpoena.”).

Indeed, courts have held that written preservation demands on third parties, in the absence of a subpoena, do not impose preservation obligations on a third party. _See Tassin v. Bob Barker Co._, No. 16-0382-JWD-EWD, 2017 WL 9963365, at \*2 (M.D. La. Sept. 28, 2017). If a written preservation demand lacks the force of law on a third party, it is very unlikely that our verbal preservation demand will be afforded greater weight. Some courts have found that a third party may become obligated to preserve evidence by the issuance of a formal "preservation subpoena" pursuant to FRCP 45. In _In re Heckmann Corp. Sec. Litig._, No 10-378-LPS-MPT, 2011 WL 10636718, at \*5 (D. Del. Feb. 28, 2011), the district court noted that "[s]ending preservation letters...is distinct from serving preservation subpoenas because the latter imposes a legal obligation on third parties to take reasonable steps to preserve relevant documents." However, in this case no formal "preservation subpoena" was ever issued to XYZ, so that line of cases is of no assistance to Brightmind here. For these reasons, it is unlikely that we will be able to pursue any spoliation claim against XYZ.

**C. As a Service Provider for Orion, We Can Attempt to Argue that the Relevant Documents Previously Possessed by XYZ Were Within the Control of Orion - However, This is a Highly Fact-Specific Inquiry.**

In this matter, XYZ is an IT vendor for plaintiff Orion. As a service provider for Orion, we can argue that Orion and XYZ have a close enough working relationship that Orion effectively had "practical control" over these documents. In this instance, any potential spoliation claim would be against Orion as the true "possessor" of the documents, as opposed to against service provider XYZ.

Second Circuit courts have previously held that "[t]he fact that the documents were in the custody of a non-party is not determinative because [defendant's] duty to preserve extends to documents in the possession of third parties so long as [defendant] had control over the documents." _Luellen v. Hodge_, 2014 WL 1315317, at \*5 (W.D.N.Y. Mar. 28, 2014). That case involved a defendant who failed to preserve relevant ESI of his bank accounts. This is a highly fact-driven inquiry - other courts have held that a non-party project management company previously hired by a litigant did not have a duty to preserve relevant ESI prior to receiving a subpoena from the opposing party in the matter, on the grounds that a "close working relationship" did not rise to the level of a "special relationship" required to impose a duty to preserve on a third party. _See Andra Group, LP v. JDA Software Group, Inc._, No. 3:15-MC-11, 2015 WL 12731762, at \*15, \*17 (N.D. Tex. Dec. 9, 2015).

As an IT vendor for Orion, XYZ presumably has an ongoing relationship with Orion, as opposed to being engaged with Orion solely for a specific project as in the _Andra Group_ case. For this reason, we can attempt to argue that these documents were within the "control" of Orion at all times, that Orion was obviously under a duty to preserve relevant ESI as soon as the litigation commenced (if not sooner), and that Orion itself should have instructed XYZ to retain all relevant documents. However, as will be discussed below, this will be a time-consuming, fact-specific inquiry, and there may be an easier way to obtain the information that we need.

**D. Simply Obtaining These Documents From Orion, as a Direct Party to this Litigation, May Be the More Efficient Path.**

Our Rule 45 subpoena to XYZ requested "all communications between Orion and XYZ relating to Brightmind, including, but not limited to, any Brightmind data shared with XYZ." As this document request is currently worded, all of this information ("communications between Orion and XYZ") should theoretically be within the possession of Orion itself. While XYZ's auto-deletion policy appears to have deleted their own ESI after one year, we have no information at this point regarding Orion's internal retention policies. An email between an Orion employee and an XYZ employee would, in theory, exist on both Orion and XYZ's email server.

For this reason, the simpler path at this point is to simply request the same category of documents from Orion itself ("all communications between Orion and XYZ relating to Brightmind...") in our own document requests to the plaintiff. While Orion would presumably not have access to any emails wholly internal to XYZ, we did not request wholly internal XYZ emails in our document subpoena in the first place. It is possible we may be able to obtain most, if not all of what we need from the plaintiff directly, without needing to engage in a costly, time-consuming, fact-intensive discovery dispute with a non-party. If there are any gaps in Orion's production relating to this issue we can always revisit this dispute, but for the moment seeking to obtain this information directly from the plaintiff is by far the path of least resistance.

**III. The ABC Subpoena**

**A. Our First Document Request to ABC is Likely Overbroad, and Should be Withdrawn or Narrowed.**

Our Rule 45 subpoena to ABC requested two categories of documents: (a) "all documents relating to ABC's relationship with Orion," and (b) "all communications between Orion and ABC relating to Brightmind." The first request of "all documents relating to ABC's relationship with Orion" is almost certainly overbroad, and we should preemptively alter or withdraw it rather than contesting any motion to quash that request.

FRCP 45(d)(3)(A)(iv) provides that courts must quash any subpoena which "subjects a person to undue burden." Whether a subpoena issued to a non-party imposes an undue burden depends upon "such facts as relevance, the need of the party for the documents, the breadth of the document request, the time period covered by it, the particularity with which the documents are described and the burden imposed." _Concord Boat Corp. v. Brunswick Corp._, 169 F.R.D. 44, 49 (S.D.N.Y. 1996). Courts generally "place special weight...to the burden on non-parties of producing documents to parties involved in litigation.” _Copantilla, et al. v. Estiatorio_, 2010 WL 1327921, at \*10 (S.D.N.Y. April 5, 2010).

The first document request to ABC, calling for "all documents relating to ABC's relationship with Orion," is indeed quite broad. While ABC is a competitor of Brightmind in the AI industry, and we might be interested in learning more about ABC's relationship with Orion, it is difficult to see how general information about the relationship between these two parties is directly relevant to this matter, which partially involves our belief that Orion may have shared Brightmind proprietary data with ABC in violation of the data-sharing agreement between Brightmind and Orion. Indeed, our second document request to ABC specifically limits itself to information relating to Brightmind. Rather than contest a motion to quash that we would likely lose with respect to the first document request, we should agree to withdraw or preemptively narrow this request.

**B. Our Second Document Request to ABC is Likely Proportional to the Needs of the Case.**

The second document request to ABC calls for "all communications between Orion and ABC relating to Brightmind." This is more narrowly targeted towards a relevant issue in this matter, and we should contest any motion to quash this document request.

FRCP 26(b)(1) provides that parties "may obtain discovery regarding any nonprivileged matter that is relevant to any party's claim or defense and proportional to the needs of the case..." One of our claims in this matter is that Orion breached its data-sharing agreement with Brightmind by sharing proprietary Brightmind data with third parties, including ABC. The court has itself recognized here that this information may be relevant to this matter, as it issued a preservation subpoena to ABC in June 2026. Indeed, agreeing to narrow or withdraw our first document request may actually bolster our legal arguments with respect to the second document request, as it will demonstrate our ability to negotiate in good faith to limit the burden on a non-party. _See_ _In re Am. Kidney Fund, Inc.,_ 2019 WL 1894248, at \*6 (good-faith negotiations to limit the scope of a subpoena demonstrates the requesting party took reasonable steps to limit undue burden).

One potential argument ABC may make is that this discovery is duplicative, and that Brightmind should be able to obtain such documents directly from plaintiff Orion. As this is similar to the argument advocated above with respect to XYZ, we should carefully consider if these documents can be obtained directly through Orion. If so, we may wish to consider doing that here as well, simply to minimize time and costs associated with respect to a discovery dispute with a non-party. From a legal standpoint, though, we should be on solid ground with our second document request to ABC.

**C.** **There is a Risk of the Court Ordering Cost-Shifting With Respect to the ABC Subpoena, But it is Not Probable.**

The attorney representing ABC has also indicated that ABC intends to file a motion requiring Brightmind to pay the "significant expenses" (in the attorney's words) required for ABC to comply with the subpoena. This is a fact-intensive inquiry and ABC has some legitimate arguments in its favor, but the balance of equities likely leans toward Brightmind on this issue.

While parties generally bear their own discovery costs in federal civil litigation, FRCP 45(d)(1) states that parties serving a subpoena "must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." Similarly, FRCP 45(d)(2)(B)(ii) authorizes courts to protect non-parties from "significant expense resulting from compliance" with subpoenas. However, the courts have also noted that these rules do "not mean that the requesting party necessarily must bear the entire cost of compliance.” _In re Honeywell Intern., Inc. Sec. Litig._, 203 F.R.D. 293, 302-3 (S.D.N.Y. 2003). Second Circuit courts have outlined three relevant factors in determining when cost-shifting is appropriate: (1) whether the non-party actually has an interest in the outcome of the case, (2) whether the non-party can more readily bear the costs than the requesting party, and (3) whether the litigation is of public importance.” _Id. _at 303.

Of these factors, the first factor is not immediately obvious. At first glance ABC, as a competing AI company, may have no interest in the outcome of a dispute between two other AI companies (Brightmind and Orion). However, facts developed during our own investigation lead us to believe that Orion may have some undetermined contractual relationship with ABC - indeed, the very purpose of the subpoena requesting documents is to learn more about the nature of this relationship. Depending on what we learn during discovery, it is possible that ABC may have some interest in Orion prevailing in this matter, or at least have an interest in Brightmind (as a competitor of ABC) not prevailing. At any rate, we should argue to the court that this is one of the very factors which has prompted this subpoena in the first place.

The second factor is mixed - we know that ABC is an AI company which competes with Brightmind. While we are not privy to ABC's financial standing, we have no reason to believe that they have substantially greater or fewer resources than Brightmind. While we can argue that ABC is fully capable of bearing the cost of production, ABC will surely argue that as a non-party of roughly equal resources to the requesting party, it is only appropriate that the requesting party bear the costs of production. This is another reason why preemptively agreeing to narrow or alter our first, likely overbroad document request may go a long way in establishing our credibility with the court on this issue. We will ultimately want to show that ABC can offer "no persuasive evidence that the compliance costs are out of line with what would be typical for a nonparty witness in complex commercial litigation.” _Chevron v. Donziger_, No. 11-cv-0691, 2013 WL 1087236, at \*33 (S.D.N.Y. Mar. 15, 2013).

The third factor, whether the litigation is of public importance, likely tilts against Brightmind here. The litigation between Brightmind and Orion is a commercial contract dispute. We can attempt to argue that we believe ABC wrongfully obtained Brightmind proprietary data from Orion in violation of the data-sharing agreement, and that there is a public interest in AI companies not obtaining data through illicit means. Unless we can show that this Brightmind data related to individual consumers, though, this is unlikely to be a persuasive argument in the context of a dispute between two sophisticated companies.

In short, while ABC can make an argument for cost-shifting here, the overall assessment is that their argument is unlikely (less than 50% chance) to succeed.

Author's notes on the task:
In general, a third party not directly involved in litigation has no duty to _preserve_ relevant evidence; rather, their obligation only extends to producing such documents when in receipt of a subpoena under Federal Rule of Civil Procedure 45. However, there are certain elements which can create such an obligation, such as an principal-agent relationship between one of the parties to the matter and the third party. There is also some case law holding that a preservation obligation may incurred if the third party reasonably anticipates becoming a party to the litigation themselves in the future, or if the third party has been on prior notice that it may be called upon to produce relevant documents. This is a very fact-specific inquiry, so I am introducing a prompt with two different third parties with different sets of facts.

Why this scenario is realistic: This is a very realistic task - in large-scale civil litigation matters, parties often must issue document subpoenas to third parties under Federal Rule of Civil Procedure 45. This prompt puts a bit of a different spin on the issue, as it involves a party first sending an initial _preservation notice_ to the third party, as opposed to immediately sending a subpoena requesting relevant documents. The former issue is less common - there is some case law on it, but it is conflicting in certain ways and fact-specific.

What makes it difficult: I would say this is somewhat tricky - the issue of third party _preservation _obligations (as opposed to production obligations pursuant to a subpoena) is somewhat uncommon. I am introducing two different third parties in this prompt, each with different relationships to the defendant, and each with a different set of facts relating to their preservation request. I am also introducing the issue of potential reimbursement of costs, which will require its own separate research.

Reference materials: <https://www.wcslaw.com/accolades/does-a-third-party-have-a-duty-to-preserve-esi/>

<https://www.butlersnow.com/news-and-events/wait-why-am-i-receiving-this-practice-pointers-on-third-party-responses-to-litigation-preservation-demands>

<https://www.lexology.com/library/detail.aspx?g=a00248bb-0651-4bc1-b8eb-c3b6113a8464#:~:text=Most%20businesses%20operate%20with%20a,the%20consequences%20can%20be%20severe>

<https://www.thesedonaconference.org/download-publication?fid=5886> (publication available for PDF download by general public)

Scoring rubric:
rubric_category: Structure & Style Rubric
criterion: Is the response organized into clearly labeled, distinct sections?
justification: Effective legal writing should be organized into distinct sections, with each separate legal issue being analyzed separately.
rubric_category: Structure & Style Rubric
criterion: Does the introduction summarize the legal issues involved before jumping into the legal analysis?
justification: Legal writers should assume that at least some readers of their work will have no prior understanding of the issues involved. Summarizing the legal issues at stake helps explain to these readers why they should care about the issues.
rubric_category: Structure & Style Rubric
criterion: Does each section and subsection succinctly describe a distinct legal issue involved?
justification: One particular legal issue (does Brightmind have a valid spoliation claim against XYZ, etc.) may involve analysis of several potential legal arguments, so these should be analyzed separately.
rubric_category: Structure & Style Rubric
criterion: Does the response analyze Brightmind's likelihood of success with respect to legal issues involved with the two third-party subpoenas, as opposed to simply describing or summarizing the state of the law?
justification: This memo is being drafted by a law firm attorney representing a particular client (Brightmind), so the readers (law firm partners, client) will want the writer to take a stand and analyze the likelihood of success, even if there are no guarantees.
rubric_category: Structure & Style Rubric
criterion: Is the Bluebook citation format consistent throughout the response?
justification: Inconsistently formatted citations can damage the credibility of legal writing.
rubric_category: Structure & Style Rubric
criterion: Is the header formatting consistent throughout the response?
justification: Legal writing which uses headers should employ a clear hierarchical system (I, A, etc.).
rubric_category: Structure & Style Rubric
criterion: Is the response completely free of typos/misspellings?
justification: Typos and misspelled words can similarly damage the credibility of an author.
rubric_category: Substance Rubric - Explicit requirements
criterion: Does the response identify that the preservation standards for non-parties to a litigation matter are generally more lenient that those for litigants?
justification: It would be a mistake to apply the same preservation standards to a non-party - they are generally not required to preserve potentially relevant documents for litigation matters that they are not a party to.
rubric_category: Substance Rubric - Explicit requirements
criterion: Does the response identify that no formal preservation subpoena was issued prior to the deletion of the emails?
justification: While parties to a potential litigation matter generally have a duty to preserve when they have reason to expect potential litigation, the same is not true of non-parties unless they have reason to believe that they may themselves become a party (which is not the case here).
rubric_category: Substance Rubric - Explicit requirements
criterion: Does the response identify legal arguments which both support and cut against Brightmind's efforts to oppose ABC's cost-shifting request?
justification: Courts consider three relevant factors in determining when cost-shifting is appropriate. Some of these factors weigh in favor of Brightmind, while others support ABC. It would be a mistake to simply assert that one side is likely to succeed without weighing the pros and cons of the argument.
rubric_category: Substance Rubric - Explicit requirements
criterion: Does the response identify that the first document request to ABC, requesting all documents relating to ABC's relationship with Orion, is likely overbroad?
justification: The subpoena to ABC should not be evaluated as a whole - rather, the two separate document request should be analyzed on their own individual merits.
rubric_category: Substance Rubric - Explicit requirements
criterion: Does the response distinguish that the court-issued preservation subpoeana to ABC created legal obligations to preserve, while the verbal request to XYZ did not?
justification: While the subpoena to XYZ raises a potential spoliation issue, the subpoena to ABC simply does not.
rubric_category: Substance Rubric - Implicit requirements
criterion: Does the response suggest that Brightmind may wish to consider preemptively withdrawing their first document request to ABC, rather than contest a motion to quash that particular document request?
justification: As a practical matter, it is a waste of time and money to engage in motion practice regarding a document request that is likely overbroad.
rubric_category: Substance Rubric - Implicit requirements
criterion: Does the response identify, with respect to the third cost-shifting factor, that this litigation matter is likely not one of public importance?
justification: Absent some indication that consumer data is impacted, it is unlikely that courts will consider a contract dispute between two sophisticated commercial parties to be of great importance to the public.
rubric_category: Substance Rubric - Implicit requirements
criterion: Does the response identify the fact that XYZ is a service provider for Orion as an indicator that the documents requested in the subpoena may be under the control of Orion?
justification: Given the fact that XYZ is an IT vendor for Orion, a quality response should also consider whether the parties had a close enough working relationship that Orion effectively had practical control over these documents.
rubric_category: Substance Rubric - Reasoning quality
criterion: Does the response suggest that agreeing to alter or withdraw the first document request to ABC may bolster Brightmind's credibility with the court with respect to seeking to uphold the second document request?
justification: Given the heavily fact-driven nature of the cost-shifting inquiry, demonstrating reasonableness with respect to a non-party may be an effective tactic for rebutting ABC's undue burden arguments.
rubric_category: Substance Rubric - Reasoning quality
criterion: With respect to the first cost-shifting factor, does the response identify that the apparent contractual relationship between Orion and ABC suggests that ABC may have an interest in the outcome of the case?
justification: While this is unknown at present, this is the very subject of the document request itself. It is arguably circular reasoning for ABC to claim that they have no interest in the outcome of the case if they are refusing to produce documents which may suggest the opposite, and Brightmind should take advantage of this argument.
rubric_category: Substance Rubric - Reasoning quality
criterion: Does the response identify that it may be possible to obtain the documents requested in the subpoena to XYZ through Orion directly, making it unnecessary to pursue any spoliation claim against the third-party?
justification: The subpoena to XYZ requested all communications between Orion and XYZ relating to Brightmind, including, but not limited to, any Brightmind data shared with XYZ. In theory, these documents should also be within the possession of Orion. Obtaining these documents directly from the plaintiff would make a legal fight with non-party XYZ unnecessary. Good attorneys consider practical matters such as this, as opposed to theoretical legal arguments which may ultimately be unnecessary.
rubric_category: Substance Rubric - Reasoning quality
criterion: Did the response identify the risk that ABC may argue that the second document request is unnecessarily duplicative, in that Brightmind can potentially request the same documents from plaintiff Orion?
justification: A response should recognize that the same argument that applies to XYZ, that documents can be obtain directly from Orion, applies equally to the second request to ABC.
rubric_category: Substance Rubric - Reasoning quality
criterion: Does the response identify that issuing a broad subpoena to a direct competitor raises concerns beyond mere overbreadth, such as the risk of exposing ABC''s business information?
justification: This matter involves an allegation that Orion may have wrongfully shared Brightmind proprietary data with ABC. The general nature of the Orion-ABC relationship is not really relevant to this allegation, and may be perceived as a fishing expedition given that ABC is a competitor of Brightmind.
rubric_category: Substance Rubric - Legal correctness
criterion: Does the response identify that the second document request to ABC, requesting all communications between Orion and ABC relating to Brightmind, is more proportional to the needs of the case than the first document request?
justification: Courts will consider document requests on a request-by-request basis, rather than throwing out an entire subpoena based on one overbroad request.
rubric_category: Substance Rubric - Legal correctness
criterion: Does the response identify the general rule that non-parties to a civil litigation matter are usually under no obligation to preserve ESI relevant to that matter?
justification: This is where the analysis of the XYZ subpoena must begin, as XYZ is not a party to the matter.
rubric_category: Substance Rubric - Legal correctness
criterion: Does the response identify that the cost-shifting obligation of FRCP 45 does not require the requesting party to bear the entire cost of compliance?
justification: This is where the analysis of the cost-shifting issue must begin.
rubric_category: Substance Rubric - Legal correctness
criterion: Does the response identify that parties to a litigation matter have a duty to preserve relevant ESI even if that ESI is in the possession of a third party, if the party to the litigation has control over the documents?
justification: This means that if Brightmind is unable to obtain these documents through either Orion or XYZ, Brightmind may ultimately have a spoliation claim against Orion (not XYZ). While not the immediate issue being considered here, it is worth mentioning given that the ultimate goal is to obtain the relevant documents.
rubric_category: Sources and References Rubric
criterion: Does the response cite a Second Circuit case outlining the test for whether a subpoena issued to a non-party imposes an undue burden on that non-party?
justification: Again, there is Second Circuit case law directly on point, so applying law from the relevant jurisdiction should be done here.
rubric_category: Sources and References Rubric
criterion: Does the response cite any Federal Rules of Civil Procedure regarding the issue of document subpoenas to a non-party?
justification: The Federal Rules of Civil Procedure specifically authorize courts to protect non-parties from significant expense resulting from compliance with subpoenas, so this should be a starting point for the analysis here.
rubric_category: Sources and References Rubric
criterion: Does the response cite any case law for the proposition that oral or written preservation demands on a non-party, in the absence of a preservation subpoena, do not impose preservation obligations on a non-party?
justification: There is less case law relating to preservation obligations on non-parties, so non-Second Circuit persuasive authority is acceptable here, but some case law on this issue should be cited.
rubric_category: Sources and References Rubric
criterion: Does the response cite a Second Circuit case which outlines the three-pronged cost-shifting test?
justification: This is the main legal principle governing the issue of cost-shifting for a non-party's costs for responding to a subpoena. Given that there is a case in this jurisdiction directly on point, a Second Circuit case should be cited here.
rubric_category: Negative Rubric
criterion: Does the response suggest that XYZ had any obligation to implement a legal hold notice, suspending its typical 1-year retention policy for emails, following the verbal preservation request?
justification: A party who reasonably anticipates litigation would have such an obligation, but the verbal preservation request gave XYZ no reason to suspect that it itself would become a party to the litigation.
rubric_category: Negative Rubric
criterion: Does the response suggest that the second document request to ABC, seeking all communications between Orion and ABC relating to Brightmind, is overbroad?
justification: This request specifically bears on the issue of whether Orion wrongfully shared proprietary Brightmind data with ABC.
rubric_category: Negative Rubric
criterion: Does the response suggest that the first document request to ABC, requesting all documents relating to ABC's relationship with Orion, is likely to withstand scrutiny by the court?
justification: As drafted, this request is not directly relevant or proportional to the needs of the case.
rubric_category: Negative Rubric
criterion: Does the response cite to any case law that has since been overruled?
justification: Again, this damages an author's credibility.
rubric_category: Negative Rubric
criterion: Does the response suggest that the verbal preservation request given to XYZ imposed a preservation obligation on that non-party?
justification: The prompt specifically notes that XYZ only received a verbal request to preserve relevant ESI, as opposed to the preservation subpoena to ABC. An effective response should identify that distinction.
rubric_category: Negative Rubric
criterion: Does the response include any hallucinated case law?
justification: For obvious reasons, this destroys the credibility of a piece of legal writing.

Peer review 1:
Overall quality: 4 - Above Standards
This is a realistic litigation discovery scenario involving subpoenas, non-party discovery obligations, preservation duties, and proportionality. The prompt mirrors the type of analytical work a lawyer would perform when evaluating subpoena strategy.
Representativeness: 4 - Typical
Difficulty: 3 - Moderate
This prompt requires good legal judgment and familiarity with civil discovery rules, but it does not require particularly deep or novel legal research. A mid-level or junior litigation attorney could complete it without a lot of difficulty
Task specification: Well-Specified

Peer review 2:
Overall quality: 5 - Exemplary
Very well written professional work. I enjoyed reading it.
Representativeness: 5 - Core Activity
Difficulty: 4 - Hard
Requires deep expertise on the subject.
Task specification: Well-Specified