Non-Party E-Discovery Obligations in New York – A Question of Proportionality

In a rare New York State appellate decision concerning e-discovery, the First Department took the opportunity to address claims by a subpoenaed nonparty of inaccessibility of electronically stored information (ESI).

The case, Tener v. Cremer, 2011 N.Y. Slip op. 6543 (1st Dep’t 2011), involved an alleged defamatory post originating from one of New York University’s computers. Plaintiff served NYU with a subpoena seeking identification of persons who accessed the Internet on a certain date via a certain IP address. In connection with motion practice on the subpoena, NYU explained that computers that accessed the web through NYU’s portal are identified in a text file listing that is automatically overwritten every 30 days. NYU claimed not to possess the technical capability or software, if such exists, to retrieve a text file that had been created more than a year earlier and written over at least 12 times during that period. Plaintiff argued that NYU had not even attempted to retrieve the data, and that the term “written over” simply meant that the old data had been allocated to free space within the system and was likely retrievable using commercially available software.

In evaluating NYU’s claim of inaccessibility, the Court adopted a hybrid standard based on the Federal Rules of Civil Procedure and e-discovery guidelines published by the Commercial Division of the Nassau County Supreme Court (the “Nassau Guidelines”). The Court cited Fed. R. Civ. P. 45(d)(1)(D)’s requirement that on a showing by a subpoenaed party that ESI was “not reasonably accessible because of undue burden or cost,” the party seeking disclosure could still obtain the discovery if it demonstrated good cause. Finding good cause to be shown since the sought after data was the only way to determine who defamed the plaintiff, the Court adopted the Nassau Guidelines approach to determining whether the data is “so ‘inaccessible’ that NYU does not have to comply with the subpoena.” This approach applies a cost/benefit analysis that weighs the burden and expense of recovering and producing the ESI against the relative need for the data.

The Court remanded the case for a hearing to determine the exact nature of the ESI at issue and the costs and burdens associated with retrieving it. The Court also cited to New York’s Civil Practice Law and Rules, which require a requesting party to defray the reasonable production expenses of a nonparty and directed that if the lower court finds that NYU has the ability to produce the data, costs should be allocated to Plaintiff.

Paul E. Asfendis is a Director on the Gibbons E-Discovery Task Force.
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