Non-parties Rimkus Consulting Group, Inc. and Rimkus Consulting Group, Inc. (collectively "Rimkus") filed a motion to quash the subpoena duces tecum served on them by defendants Christopher and Jennifer Ahner (“the Ahners”), and for a protective order. Rimkus had, on behalf of plaintiff Auto Club Family Insurance Company, investigated the hurricane-related damage to the Ahners' home that was the subject of the lawsuit. Rimkus agreed to respond to the subpoena by producing a hard copy of its entire file concerning its investigation, but argued that it should not be required to produce its electronically stored information.
The court noted that Rules 26(c) and 45 governed the proceeding, and that, having sought a protective order, Rimkus had a burden to make “’a particular and specific demonstration of fact as distinguished from stereotyped and conclusory statements,’ in support of its motion.” Considering each of Rimkus’s arguments in turn, the court denied the motion to quash the subpoena.
Rimkus argued that, under Rule 45(d)(1)(C), it need not produce information in both paper and electronic forms, and stated it preferred producing hard copy of its files rather than electronic data because the hard copy mimicked the ESI, and was the form used by its own engineers and supplied to its clients – so as to preclude any alteration of its professional findings. Rimkus argued that disclosure of its ESI would compromise the authenticity and integrity of its engineering reports.
The rejected Rimkus’s argument against producing in electronic format citing several reasons. First, the court noted that for those files that were stored electronically in the ordinary course of business, having produced them in hard copy did not “in and of itself excuse a party from producing the requested information in electronic form.” Furthermore, the court noted that Rimkus had not provided any evidence to support its assertion that the authenticity of its engineering reports might be compromised if the Ahners were permitted to discover its electronic files. Finally, the court noted that the paper copies that Rimkus had deliberately retained in its files were highly unlikely to contain all of the responsive material that would have been generated during its investigation – such as working papers, e-mails requesting clarification, rough drafts and similar materials.
Rimkus also argued that Rule 26(b)(4) precluded the Ahners from seeking information from it by subpoena because it was Auto Club's retained expert, and its former employee had been listed as an expert trial witness by Auto Club. The court disagreed, noting that Rimkus's status as a testifying expert made it all the more important that the facts and documents underlying its opinions be disclosed in response to a valid discovery request. Underscoring the importance of this information, the court pointed to the provisions of Rule 26(a)(2), which require parties to disclose this type of information as part of their initial disclosures, without awaiting a discovery request. Furthermore, the court noted that Rule 26(b)(4) places limitations on depositions and interrogatories involving experts, but does not limit document requests.
Rimkus next contended that it was entitled to relief under Rule 45(d)(1)(D) because the requested electronic files were "not reasonably accessible" and production of these materials would be unduly burdensome and expensive. Rimkus asserted that the Ahners were required to show good cause to compel it to produce its ESI, and that the Ahners had not met their burden.
The court disagreed, explaining:
Rimkus misunderstands the burden of proof, which Rule 45(d)(1)(D) plainly sets forth. Initially, Rimkus must make an evidentiary showing that the data sought is not reasonably accessible because of undue burden or cost. Rimkus has failed to provide any evidence to surmount this threshold. The statement of a lawyer in a memorandum that the electronic information is not readily accessible or that it would be unduly burdensome to comply with the request is not evidence. The Ahners are not required to show good cause to overcome Rimkus's unsupported assertions.
The court found that the information the Ahners had requested was relevant to the claims and defenses of the parties and reasonably calculated to lead to the discovery of admissible evidence. It observed that it would “not automatically assume that an undue burden or expense may arise simply because electronic evidence is involved.”
While recognizing that Rimkus as 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, the court also noted that Rules 45(d)(1)(D) and 26(c)(5) imposed a burden of proof upon Rimkus to show that the requested ESI would be unduly burdensome to produce. The court found that Rimkus had offered no evidence of any kind sufficient to satisfy this burden. First, the court pointed to Rimkus’s counsel’s inability in his oral argument to quantify or provide any evidence sufficient to show that requiring the requested production would subject Rimkus to undue burden or cost. In fact, the court observed that it appeared from the statements of Rimkus's counsel at oral argument that “the requested production could be made by Rimkus with the use of in-house personnel and resources that would not unreasonably exceed the ordinary kinds of expenses that subpoena recipients are typically expected to bear.”
Similarly, the court dismissed Rimkus’s newly introduced argument that the requested materials were prepared in anticipation of litigation, and thus protected from discovery under Rule 26(b)(3). The court noted that for this objection to be sustained, it must be properly asserted and the facts supporting it must be established by evidence. The court found Rimkus failed to meet its burden. The court pointed to the failure of Rimkus to provide a privilege log as required under Rule 26(b)(5), and found that the materials Rimkus had submitted did not by themselves establish that the requested information was privileged in any way – further noting that relying merely on the assertions of their counsel in oral argument that materials were prepared in anticipation of litigation was not evidence sufficient to bear the burden.
The court concluded by denying Rimkus’s motion, but allowed that if Rimkus could “prove that responding to this subpoena would impose unreasonable burden or costs upon it as a nonparty, it may file a new motion, supported by evidence, seeking to impose some or all of such costs upon the parties who issued the subpoena.” (Italics in original.)