Court Orders Production of Backup Tapes Pursuant to Order of Non-Waiver Under Rule 502(d)
Radian Asset Assurance, Inc. v. Coll. of the Christian Bros. of New Mexico, 2010 WL 4928866 (D.N.M. Oct. 22, 2010)
Plaintiff opposed the court’s proposal to order defendant’s production of backup tapes pursuant to an order of non-waiver and argued that defendant should have to search and produce its own electronically stored information (“ESI”) and that the burden and cost of doing so should not be shifted to plaintiff. Rejecting the notion that such an order amounted to cost-shifting and upon finding the ESI “not reasonably accessible,” the court ordered the tapes’ production pursuant to an order under Rule 502(d).*