Non-parties to a litigation have long taken comfort in rules and guidelines that generally have protected them against unduly burdensome subpoenas, including when it comes to collecting and producing electronically stored information (“ESI”).
Federal Rule of Civil Procedure 45, for example, expressly protects non-party subpoena targets who are able to establish that requested ESI is “not reasonably accessible because of undue burden or cost.” 1Fed. R. Civ. P. 45(d)(1)(D); see also United States v. Friedman, 532 F.2d 928, 937 (3d Cir. 1976) (counseling that Rule 45 “serves as significant precedent disclosing a broad congressional judgment with respect to fairness in subpoena enforcement proceedings”). Federal courts may, of course, order discovery of such material “if the requesting party shows good cause.” 2Fed. R. Civ. P. 45(d)(1)(D).
Nevertheless, non-party status itself has proved to be a “significant factor to be considered in determining whether the burden imposed by a subpoena is undue.” 3Whitlow v. Martin, 263 F.R.D. 507, 512 (C.D. Ill. 2009). Indeed, in jurisdictions across the country, the burden of proving inaccessibility has for years seemed a bit lower for non-parties than for parties, primarily because courts seem to have taken into account non-party status when making the inaccessibility determination. 4See, e.g., United States v. CBS, 666 F.2d 364, 371-72 (9th Cir. 1982) (“Although party witnesses must generally bear the burden of discovery costs, the rationale for the general rule is inapplicable where the discovery demands are made on nonparties. Nonparty witnesses are powerless to control the scope of litigation and discovery, and should not be forced to subsidize an unreasonable share of the costs of a litigation to which they are not a party… . [W]e nevertheless emphasize that a witness’s nonparty status is an important factor to be considered in determining whether to allocate discovery costs on the demanding or the producing party.”); EEOC v. Kronos, Inc., No. 09 mc0079, 2011 BL 126169, *4 (W.D. Pa. May 3, 2011) (forcing the subpoenaing party to split the costs of compliance equally with the non-party subpoena target and expressly citing the target’s non-party status explicitly in explaining its decision); United States v. Amerigroup Ill., Inc., No. 02 C 6074, 2005 BL 45670, at *8 (N.D. Ill. Oct. 21, 2005) (citing several cases in support of the proposition that, “[i]n keeping with the text and purpose of Rule 45(c)(3)(A), it has been consistently held that ‘non-party status’ is a significant factor to be considered in determining whether the burden imposed by a subpoena is undue”); Certain Set-Top Boxes and Components Thereof, Int’l Trade Comm’n Inv. No. 337-TA-454, Order No. 16, at 1–2 (July 2, 2001). But see Conference of Chief Justices, Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information (2006) (applying to parties and non-parties alike the same standard with respect to the accessibility of ESI).
The Tener Decision
A 2011 decision by New York’s Appellate Division, First Department, however, may suggest that the weight previously accorded to this factor is diminishing.
Tener v. Cremer, 89 A.D. 3d 75 (N.Y. App. Div. 2011), represents the New York appellate court’s first look at a non-party’s obligation to produce ESI that is not simply “not reasonably accessible,” but that has, in fact, been deleted in the ordinary course of business. 5Id. at 76.
The Tener Facts.
In Tener, the plaintiff subpoenaed non-party New York University (“NYU”) for the identity of all persons who had accessed the Internet from a particular internet protocol address on the day that allegedly defamatory statements about the plaintiff were posted on a website. 6Id. at 76-77.
In opposing a motion for contempt filed by the plaintiff after NYU refused to produce the requested information, NYU argued that the ESI at issue had been deleted in the ordinary course of business, and that any deleted ESI that could be recovered was not reasonably accessible because NYU did “not possess the technological capability or software, if such exists, to retrieve” it. 7Id. at 77.
Non-Parties Must Try to Find Data.
Importantly, NYU “offered no evidence that it made any effort at all to access the data,” nor did it determine what such retrieval would cost. 8Id. at 77-78. As the First Department saw it, NYU rested its opposition on its status as a non-party, apparently believing that it simply did not need to make any concerted effort to retrieve the deleted data. 9Id. at 78.
The First Department seemed to have little patience for NYU’s reliance on its non-party status in deciding not to “install forensic software on its system.” 10Id. Dismissing NYU’s cases as “outdated,” and citing the 2006 Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, the New York Uniform Rules, 11Uniform Rules for Trial Courts, 22 N.Y.C.R.R. § 202.12(c)(3). and the Nassau Guidelines, 12New York State Supreme Court, Commercial Division, Nassau County, Guidelines for Discovery of Electronically Stored Information (ESI), II(c)(4) (effective June 1, 2009) (hereinafter the “Nassau Guidelines”). the First Department essentially dispensed with the practice of affording a non-party special treatment. 13Tener, 89 A.D.3d at 79-80.
Non-Party Status Only One Factor.
Instead, the court determined that the accessibility of all ESI, whether from a party or non-party, should be assessed by comparing the burden and expense of recovering and producing the ESI with the relative need for the ESI. 14Id. at 79-80 (citing the Nassau Guidelines, at IV); id. at 80 (citing The Sedona Conference Working Group, The Sedona Conference Commentary on: Preservation, Management and Identification of Sources of Information that are Not Reasonably Accessible, at 9 (July 2008)). “Non-party status” was not a trump card, but only one factor to be considered and weighed against the “good cause” shown by the movant. 15Id. at 80; id. at 82 (“That NYU is a nonparty should also figure into the equation.”).
The First Department also rejected NYU’s argument that deleted data was per se inaccessible, observing instead that “[d]eletion usually only makes the data more difficult to access.” 16Id. at 79.
Declining to follow certain federal courts that have suggested strict limits on the discovery of particular types of ESI that are frequently overwritten or ephemeral (including deleted or unallocated ESI on hard drives), 17Seventh Circuit Electronic Discovery Committee, Seventh Circuit Electronic Discovery Pilot Program, at 14-15 (Oct. 1, 2009). the First Department held that the “cost/benefit analysis” provided for by the Nassau Guidelines (and the Federal Rules 18See Fed. R. Civ. Proc. 26(b)(2)(B), 26(b)(2)(C)(iii).) is the appropriate way to “giv[e] the court flexibility to determine literally whether the discovery is worth the cost and effort of retrieval.” 19Tener, 89 A.D.3d at 81 (also citing Fed. R. Civ. Proc. 26(b)(2)(C)(iii) and Zubulake v. UBS Warburg, LLC, 217 F.R.D. 309, 316 (S.D.N.Y. 2003)).
Because the record before it in Tener did not contain the necessary information for the court to undertake such an analysis, the First Department remanded to the Supreme Court to determine a host of issues. 20Id. at 82.
Long Term Implications.
The true significance of the First Department’s decision in Tener is not yet known. It may signal the start of a trend toward requiring greater specificity and reliability in the evidence supporting a non-party’s (or any litigant’s) argument that requested ESI is “not reasonably accessible due to undue burden or cost.” Now more than ever, parties or non-parties advancing arguments regarding inaccessible ESI may deem it advisable to provide courts with substantiated accounts of the anticipated cost and technological feasibility of data recovery.
Moreover, if Tener is any indication, then non-party status will continue to be a factor—but certainly not the only factor—in evaluating a motion to quash or a response to a motion to compel.
