Even Non-Parties To Lawsuits May Have To Retrieve And Disclose ESI

Posted by Gregg Mayer on Tuesday, March 11th, 2008   

Companies do not have to be sued in order to be burdened with retrieving and disclosing electronically stored information (“ESI”) for litigation.

Under the Federal Rules of Civil Procedure, Rule 45 provides ESI may be subject to subpoenas from the court. In general, a subpoena is a legal document that commands that a person or information – such as ESI – be made available for litigation.

Parties to litigation may subpoena information from a variety of relevant sources, including from companies that are not actually named in the lawsuit.

This issue arose last fall in the Louisiana case of Auto Club Insurance Company v. Ahner.

In the case, the Ahners, who were involved in a lawsuit involving damage to their home following Hurricane Katrina, issued a subpoena for ESI to Rimkus Consulting Group, Inc.

Rimkus had investigated damage to the Ahners’ home for Auto Club prior to the lawsuit.

Rimkus argued that it only wanted to produce the information as hard copies, not ESI. Next, Rimkus argued that the ESI was not reasonably accessible. The Ahners wanted the information in electronic format.

First, the court rejected Rimkus’ request to produce only hard copies of the information:

The mere fact that information which as a matter of ordinary course of one’s business is electronically stored has been produced in functional equivalent, such as through hard copy, does not in and of itself excuse a party from producing the requested information in electronic form.
…
Moreoever, the paper copies that Rimkus has deliberately retained in its files are highly unlikely to contain all of the respective material that was generated during its investigation…This type of information may well include, for example, working papers, e-mails requesting clarification, rough drafts and similar materials that are neither incorporated in final reports nor, perhaps, deemed worth of retention in hard copy.

Second, the court rejected Rimkus’ argument that the ESI was not “reasonably accessible.” Rimkus had failed to offer any evidence that retrieving the ESI would cause undue burden or costs. A mere statement by the lawyer was not enough.

The court is cognizant that Rimkus is a non-party with no direct stake in this litigation and that non-parties in particular are entitled to protection from undue burden and expense. However [the Federal Rules of Civil Procedure] impose a burden of proof upon Rimkus to show that the requested electronically stored information is unduly burdensome to produce. Rimkus has offered no evidence of any kind sufficient to satisfy this burden.

CIOs, in maintaining archiving for possible e-Discovery, should keep in mind that a company does not actually have to be named in a lawsuit in order to be forced to retrieve and disclose ESI. Non-parties to lawsuits are subpoenaed all the time. Once ESI is subpoenaed, it must be preserved and produced, unless a company is more successful than Rimkus in quashing the subpoena. Effective ESI management requires the ability to retrieve electronic information at any time.

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