Attorneys are always concerned with the financial, time and resource burdens associated with producing documents and electronically stored information (ESI). When these costs are paid by non-parties that have little to no stake in the litigation involved, the costs become even less desirable.
Fortunately, the law recognizes this issue. In 2006, lawmakers amended the Federal Rules of Civil Procedure regarding ESI and related case law, identifying some key differences between the obligations of these non-parties and parties.
The big question lawmakers had to consider was what is fair and/or reasonable when it comes to determining responsibilities based on party status in the area of eDiscovery, especially when there is the potential for an undue burden and/or cost. Rule 45(c) in the Federal Rules of Civil Procedure requires the requesting party to take “reasonable” precautions to avoid creating an undue burden or expense that would affect the non-party. Courts typically use a balancing test that compares the party’s benefits to the non-party’s burdens when analyzing the nature of “undue burden.”
If the requesting party has made multiple requests for ESI or is seeking documents or information the non-party can demonstrate to not be reasonably accessible, then the balancing test will likely favor that non-party. For example, the burden to the non-party overrides the benefit to the party if electronic files that had been sent from or received by a litigation party are sought from that non-party.
Producing emails can be expensive due to a combination of having to search through massive storage volumes and dealing with technological limitations, which can make it more difficult for people to effectively and efficiently search and filter information. If the files in question are possessed by a litigation party and the party making the request is unable to demonstrate the ESI production by the party is insufficient, then the non-party is again likely to receive a favorable outcome in the balancing test.
However, non-parties must also understand that the cost protections outlined in Rule 45 do not also provide automatic protections to the responding party from its obligations during discovery. Any objections filed based on undue cost or burden must be backed by clear and thorough evidence.
In some cases, it is not possible for non-parties to completely avoid their obligations during discovery based on undue burden and cost objections. However, these considerations can still be enough to give these non-parties an advantage in negotiations. The requesting party could, for example, be ordered to use specific processes geared toward cutting the costs of discovery to avoid undue burdens on third parties.
Non-parties negotiating responses to subpoenas for third parties should therefore push for using search technologies that would limit the volume of documents being reviewed and the overall scope of the discovery process.
Another potential mechanism that can be used to protect non-parties from undue expenses during discovery requests is cost shifting. Some courts analyze a list of factors when deciding whether they will shift discovery costs from the non-party responder to the requesting party. It can be quite difficult to separate the cost-shifting process from the overall examination of undue cost and burden in discovery, as both issues are open to a court’s interpretation. However, the law suggests that considerations of cost and undue burden in these cases tend to favor non-parties.
In general, non-parties can take some solace in the fact that there are numerous protections to shield them from undue cost burdens. Still, it is important for all parties and non-party respondents to understand their obligations—and how each side’s respective obligations differ from one other.