A key non-party fact witness is fairly the target of a subpoena seeking production of ESI. In Wood v. Town of Warsaw, North Carolina, the United States District Court for the Eastern District of North Carolina held that ESI preserved on a former town manager’s personal computer must be made available for a search by a forensic expert in response to the Plaintiff’s subpoena.

Raymond Wood, the former police chief of the town of Warsaw, North Carolina, alleged that his dismissal by former town manager Jason Burrell was motivated by the town’s desire to have “younger blood in the chief’s office.” Plaintiff sued for age discrimination under the Federal Age Discrimination in Employment Act. During discovery, Plaintiff directed a subpoena to non-party Burrell requesting, among other things, a search of Burrell’s personal computer using to be agreed-upon search terms.

Resisting the subpoena, Burrell argued that the proposed search would be time-consuming, costly and an invasion of his personal privacy. He further claimed that he did not use his personal computer for work-related purposes, and that if any responsive documents existed on his personal computer, he would produce them since they would be otherwise responsive to the subpoena. In response, Plaintiff argued that the proposed search was reasonably calculated to lead to the discovery of admissible evidence, that he had already agreed to pay for the cost of the proposed search by a forensic expert, that he had submitted proposed search terms to Burrell’s attorney and that the only cost to Burrell would be a privilege review by his personal attorney.

The Court began its analysis with Federal Rule of Civil Procedure 45, which governs requests for discovery, including ESI, from non-parties. Under Rule 45, a Court must weigh (1) the relevance of the discovery sought; (2) the need for the information; and (3) the potential hardship to the non-party. The Court noted requests to non-parties may also be limited if the information sought “is obtainable from another source that is more convenient, less burdensome, or less expensive, or if the burden of the proposed discovery outweighs its likely benefit." While acknowledging the breadth of the subpoena directed to Burrell, the Court determined that Wood reasonably sought “only those non-privileged documents identified by an electronic search for key words related to the claims and defenses asserted by the parties.” The Court further noted that Burrell was not a disinterested fact witness. Rather, he “is alleged to have been Plaintiff’s supervisor at the time the events at issue occurred and is alleged to have terminated Plaintiff.”
Perhaps the most important holding in Wood was the Court’s acknowledgement that employees often transact business outside the workplace using personal electronic devices.

In this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices. Therefore, it is not unreasonable, despite Burrell’s assertions to the contrary, that some relevant information may be found on his personal computer’s hard drive.

Wood clearly supports a party’s effort to obtain ESI from a non-party’s personal electronic devices. (Contrast the New York State Supreme Court’s decision in DeRiggi v. Krischen, which you can read about here, where the court refused to order a forensic examination of a plaintiff’s personal computer hard drive.) Wood is also another example of a non-party being ordered to comply with a subpoena seeking ESI, even where the non-party may experience some cost or inconvenience in the process. Plaintiff’s success in enforcing his subpoena likely resulted, at least in part, from his agreement to pay most of the costs of searching Burrell’s hard drive, as well as Plaintiff’s proactive approach in proposing search terms as part of the meet and confer efforts. Such efforts at cooperation are a clear sign of good faith that nearly always favorably impress a court in resolving an e-discovery dispute of any sort.

Stephen J. Finley, Jr. is an Associate on the Gibbons E-Discovery Task Force.