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Full Opinion
RULING ON PLAINTIFF’S MOTION TO COMPEL INSPECTION OF THIRD PARTY MARSH USA, INC.’S COMPUTER RECORDS (DOC. # 56)
I. INTRODUCTION
Plaintiff Teri Tucker (“plaintiff’ or “Tucker”) commenced the present action to recover damages from her former employer’s insurers, American International Group, Inc. (“AIG”) and National Union Fire Insurance Company of Pittsburgh, PA (“National Union”) (collectively “defendants”), arising from her unlawful discharge in 2003, pursuant to an employment practices liability insurance policy (herein “EPL Policy”). In this action, she seeks to collect from defendant insurers the $4 million judgment in her favor in Tucker v. Journal Register East, Doe. # 3:06-CV-307 (SRU) (herein “Tucker I”), the prior
In the course of discovery, on April 8, 2010, Tucker served a “Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action” upon nonparty Marsh USA, Inc. (herein “Marsh”), the insurance broker with respect to the EPL Policy. Doc. # 57-1. On May 7, 2010, “[bjased on a search of hard copy documents,” Marsh produced several hundred documents in response. Doe. # 67, p. 5, Doe. # 57, p. 1. Plaintiff contends that “[mjissing from these documents were relevant emails sent to a former employee of Marsh, Lucy Carter, who handled the Journal Register Company’s applications for the EPLI insurance to AIG member companies.” Doc. # 57, p. 1. Specifically, missing from the production was “an email dated April 19, 2007 from Ricardo Venegas of JRC [Journal Register Company] to Lucy Carter, ... inquiring whether the defendants had been notified of two lawsuits against JRC, one of which was Tucker’s.” Doc. # 67, p. 5 (describing “April 19 Email”). Plaintiff had previously independently obtained this and other similar emails after subpoenaing Journal Register Company. Doc. # 57, p. 1.
Plaintiff asserts that upon noting “the missing records, [her counsel] immediately requested that Marsh perform a further search of its computer records for additional emails to, and from, Carter” regarding her claim. Id., p. 1-2. In response, Marsh ordered its IT Department to restore Ms. Carter’s email profile for the relevant period. Doe. # 67-6, ¶ 4. Consequently, a backup tape for the period of November 5, 2003 to April 20, 2007 was restored and Ms. Carter’s email was searched for the following terms: “Journal Register, Teri Tucker (both Teri and Tucker separately and collectively), Litigation, Ricardo Venegas, and Claims.” Id. On August 18 and 30, 2010, Marsh produced additional emails and correspondence.
Shortly thereafter, in August 2010, Jeffrey Bagnell, counsel for plaintiff, conferred with Steven Monroe, counsel for Marsh, regarding a possible additional search of Marsh’s records by Datatrack Resources, LLC (herein “Datatrack”),
Monroe suggested that he and Bagnell “discuss what Bagnell needed” and that Marsh “proceed in a more traditional fashion with an agreed upon set of search criteria and other parameters.” Doc. # 67-6, ¶ 9. Monroe stated in his affidavit that Bagnell never returned the call to resolve the issue of a further search before filing the motion to compel. Id., ¶ 10. Rather, the following day, October 28, 2010, Bagnell emailed Sonia Smart with a message to Monroe that Bagnell believed that he and Monroe had reached an agreement several weeks ago that plaintiffs third party expert would be allowed “to inspect [Marsh’s] relevant computer media regarding Lucy Carter’s involvement in this claim.” Doc. # 57-5, p. 1. Bagnell further stated that he had “retained Data Trak Resources at considerable expense” to his client, Tucker. Finally, Bagnell concluded that Monroe’s current proposal of another internal search was unacceptable and so “we will take this up with the Court.” Doc. # 57-5.
II. PENDING MOTION
A. Plaintiffs motion to compel inspection
Plaintiff has moved pursuant to Federal Rule of Civil Procedure 45(e)(2)(B)
In support of her motion, in addition to citing Rule 45(e)(2)(B), plaintiff argues that the Court has “inherent authority to compel the inspection of records under Rule 37(b).”
In relation to the requested records, plaintiff argues that “[u]pon receipt of a Rule 37 motion to compel, the Court has broad power to order production of any and all discovery that is “relevant to the claim or defense of any party.” Doc. # 57, p. 4 (quoting Fed. R.Civ.P. 26(b)(1)). The Court need only find “good cause” for the production, bearing in mind that discovery is “relevant” if it is even “reasonably calculated to lead to the discovery of admissible evidence.” Id.
Plaintiff clarifies that she believes that “good cause” exists for a further inspection of Marsh’s computer records on the ground that such an inspection is “reasonably calculated to lead to the discovery of admissible evidence, and is also reasonably calculated to uncover the extent to which there has been spoliation of what would have otherwise been admissible evidence.” Doc. # 57, p. 5.
Plaintiff concludes that a motion to compel is appropriate in this case because Marsh’s prior two sets of production “omitted a significant number of relevant communications ... to Tucker’s claim.” Id. Furthermore, the documents produced “cease without explanation on April 24, 2007, despite a pending request from Journal Register Company’s former Treasurer, Ricardo Venegas, for more information.” Id. In plaintiffs opinion, “it defies credibility that Marsh did not provide a response to its client” on the pending claims at issue.
B. Marsh’s objection to inspection
Marsh objects to plaintiffs proposed inspection of its computer records, arguing that “Marsh has more than fully complied with any reasonable obligations that it might have as a non-party to respond to Tucker’s Rule 45 subpoena.” Doc. # 67, p. 3. Marsh has indisputably turned over “several hun
Furthermore, Marsh, through its Senior Litigation Counsel, Steven Monroe, contests plaintiffs allegation that an agreement had been reached with Bagnell to allow inspection of its computer records. Monroe states that he only agreed to “seriously consider” Bagnell’s request for inspection of computer records and told Bagnell to send him a “written proposal.” Doc. # 67-6, ¶ 7. In his affidavit, Monroe thus avers, “[t]o be clear, I never agreed to allow Mr. Bagnell to conduct his own search of Marsh’s electronic records.” Id., ¶ 11.
In sum, Marsh contests plaintiffs motion to compel further inspection on five grounds: (1) Tucker’s original subpoena did not call for the production or inspection of what she now seeks, and a motion to compel is thus premature and unwarranted;
III. STANDARDS OF LAW
A. Rule 45
Rule 45 of the Federal Rules of Civil Procedure permits parties to obtain information from non-parties through inspection and copying of documents the non-party is required to produce. Rule 45 thus provides for the service of a subpoena to produce and “permit inspection, copying, testing, or sampling” of “designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control.” Fed.R.Civ.P. 45(a)(l)(A)(iii), (a)(1)(D). See also Fed.R.Civ.P. 34(c) (“[a]s provided in Rule 45, a nonparty may be compelled to produce documents and tangible things”). “A person commanded to produce documents or tangible things ... may serve on the party or attorney designated in the subpoena a written objection____At any time, on notice to the commanded person, the serving
B. Rule 26(b)
Rule 26(b)(1) of the Federal Rules of Civil Procedure sets forth the scope and limitations of permissible discovery. “Parties may obtain discovery regarding any non-privileged matter that is relevant to any party’s claim or defense____For good cause, the court may order discovery of any matter relevant to the subject matter involved in the action. Relevant information need not be admissible at the trial if the discovery appears reasonably calculated to lead to the discovery of admissible evidence.” Fed. R.Civ.P.26(b)(1). Information that is reasonably calculated to lead to the discovery of admissible evidence is considered relevant for the purposes of discovery. See Daval Steel Prods. v. M/V Fakredine, 951 F.2d 1357, 1367 (2d Cir.1991); Morse/Diesel, Inc. v. Fidelity & Deposit Co., 122 F.R.D. 447, 449 (S.D.N.Y.1988).
Pursuant to Rule 26(b)(2)(B), a party must provide discovery of electronically stored information unless that party shows that the source of such information is “not reasonably accessible because of undue burden or cost.” Fed.R.Civ.P. 26(b)(2)(B). Once the served party shows that a source of electronically stored information is not reasonably accessible, the requesting party may still obtain discovery by showing “good cause, considering the limitations of Rule 26(b)(2)(C),” which balance the costs and potential benefits of discovery. Id. “The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case.”
Under Rule 26(b)(2)(C), courts impose a proportionality test to weigh the interests of the parties to determine whether discovery, even if relevant, should be allowed to proceed.
C. Non-parties and burden — balancing the interests of the parties
With respect to non-parties in particular, although “[t]he permissible scope of discovery from a non-party is generally the same as that applicable to discovery sought from parties[,] ... [t]he burden on the party from which discovery is sought must, of course, be balanced against the need for the information sought.” Wells Fargo Bank, N.A. v. Konover, No. 3:05CV1924 (CFD)(WIG), 2009 WL 585434, at *5 (D.Conn. Mar. 4, 2009) (applying balancing test of Rule 26(b)(2)(C) to deny in part plaintiffs Rule 45 motion to compel production of documents from non-party).
Furthermore, by its terms, Rule 45(c)(2)(B)(ii) mandates that courts protect third parties from onerous discovery requests. That provision states that, when “the serving party ... move[s] the issuing court for an order compelling production or inspection” from a non-party, “[t]hese acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Fed.R.Civ.P. 45(c)(2)(B)(ii) (emphasis added). Courts have relied on such language to protect non-parties from “significant expense” arising from document production. See, e.g., Jackson v. AFSCME Local 196, 246 F.R.D. 410, 413 (D.Conn.2007) (Hall, J.) (ordering plaintiff to pay expenses of non-party in complying with discovery request to gather electronic records); Honda Lease Trust v. Middlesex Mut. Assur. Co., No. 3:05CV1426(RNC), 2008 WL 349239, at *5 (D.Conn. Feb. 6, 2008) (Chatigny, J.) (instructing third party witness to seek an agreement with plaintiffs counsel regarding reasonable reimbursement of his expense, if “significant,” in inspection and copying of documents per plaintiffs discovery request; otherwise, “he may move for reimbursement of some or all of those costs”); Florida Software Systems, Inc. v. Columbia/HCA Healthcare Corp., No. 99-MC-0036E, 2002 WL 1020777 (W.D.N.Y., Feb. 25, 2002) (quoting Fed.R.Civ.P. 45(c)(2)(B)) (“[a]n order compelling production pursuant to a subpoe
In general, a “district court has broad discretion to direct and manage the pre-trial discovery process,” and its discovery rulings are reviewed only “for abuse of discretion.” Wills v. Amerada Hess Corp., 379 F.3d 32, 41 (2d Cir.2004). “Ultimately, ‘[t]he determination of issues of burden and reasonableness is committed to the sound discretion of the trial court.’ ” Akande v. Graser, No. 3:08-cv-188(WWE), 2010 WL 3613912, at *1 (D.Conn. Sept. 3, 2010) (quoting Concord Boat Corp. v. Brunswick Corp., 169 F.R.D. 44, 53 (S.D.N.Y.1996)). In particular, “what constitutes an undue burden in a given instance is a case specific inquiry, 9A Wright & Miller, Civil 2d § 2449, at 48 & nn. 32-33.” Concord Boat Corp., 169 F.R.D. at 53.
IV. DISCUSSION
After reviewing both Tucker’s and Marsh’s arguments and cited authority, the Court herein denies plaintiffs motion to compel for the reasons set forth below.
A. Plaintiffs request is overly broad
First, on its face, plaintiffs proffered inspection protocol is overly broad and thus exceeds the bounds of permissible discovery under Rule 26(b)(2)(C). Plaintiffs requested inspection of Marsh’s computer records seeks access to records and information well beyond the parameters of emails to and from Lucy Carter with respect to Tucker’s claim. In the actual inspection protocol plaintiff submitted to Marsh, plaintiff requests to examine, inter alia, “[d]esktop and/or laptop computers used by, assigned to or previously assigned to Lucy Carter in 2006 and 2007; all electronic storage media, including, but not limited to, hard drives (internal and external), jump drives, other USB (Universal Serial Bus) storage devices, Flash Memory cards, CDs (all types), DVDs, and Floppy disks; hard drives housed in servers that provide or provided storage for Ms. Carter’s documents and/or E-mail communication related to her.” Doe. #57-3, p. 2, para. 1. Plaintiff further requests to examine: Marsh’s “[rjecords [including emails] relating to the purchase, assignment, maintenance, and any other procedures performed on any computer or storage device assigned or previously assigned to Ms. Carter;” “[c]ompany policy in effect for the retention of data, documents and [e]-mail for the period 2006 through the present;” “[c]ompany policy as it relates to the retention of electronic documents and [e]-mail housed on individual workstations, company servers and other storage devices during the period 2006 through the present;” “[c]ompany policy regarding the backup of data files, including [e]-mail for the period 2006 through the present ... includfing] any parameters that may be in place for the destruction of these backup files;” and “[d]etails of the system[s] utilized by the company for sending, receiving an storing [e]-mail communications,” including those used for communicating with and about Ms. Carter during her employment.” Id., paras. 2-6; see also Doe. # 67, p. 7.
As set forth, supra, pursuant to Rule 26(b)(2)(C), the Court may limit or deny discovery sua sponte or upon motion, when, for example, “such discovery sought is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed.R.Civ.P. 26(b)(2)(C)(i). Similarly, the Court may limit discovery when “the burden or expense of the proposed discovery outweighs its likely benefit.” Id., 26(b)(2)(C)(iii). See also 7 James Wm. Moore, et al., Moore’s Federal Practice ¶¶ 33.173[3]-[4] (3d ed. 2004) (party may object to a relevant discovery request if it is “overly broad” or “unduly burdensome”); accord Charles A. Wright, Arthur R. Miller and Richard L. Marcus, 8A Federal Practice & Procedure § 2174, at 297 (2d ed. 1994). Rule 26(b)(2)(C) was clearly designed to allow a court to intervene and prevent an overly broad search request, such as that proposed by Tucker.
Despite the indisputably broad range of plaintiffs request — seeking Marsh’s computers, records, policies and system information — plaintiff nonetheless argues that she seeks only “one former employee’s electronic records.” Doc. # 70, p. 4. The fact remains
Furthermore, plaintiffs cite to Ameriwood Industries, Inc. v. Liberman, No. 4:06CV524-DJS, 2006 WL 3825291 (E.D.Mo. Dec. 27, 2006), in support of what she terms her “limited inspection,” is unpersuasive to the Court. Doe. # 70, p. 5. Specifically, the Court disagrees with plaintiffs assertion that “Ameriwood in fact involves the exact same situation presented here, i.e., a responsive email was not produced by its author, but was obtained from a third party, a fact which justified inspection.” Doc. # 70, p. 5 (emphasis added). Ameriwood may be distinguished from the case at bar by two important facts. First, in Ameriwood, plaintiff requested the production of records from the defendants, as opposed to non-parties. Second, the plaintiff in Ameriwood sued defendants for violation of the Computer Fraud and Abuse Act, 18 U.S.C. § 1030. Thus, not only were the parties who failed to produce the allegedly missing email the defendants in the action, they were also “alleged to have used the computers, which [were] the subject of the discovery request, to secrete and distribute plaintiffs confidential information.” 2006 WL 3825291, at *5. Use of the computer — “[h]ow and whether defendants handled those documents and what defendants did with the documents [were] certainly at issue” in the case. Id. In the present action, plaintiff seeks to impose an onerous discovery burden on a non-party, against which she has no pending action for computer mis-use or violation of any computer-related laws.
Furthermore, in allowing the search to go forward in Ameriwood, the court set the explicit condition that plaintiff would incur the expense of obtaining the computer information sought:
As plaintiff does not object to incurring the costs for the requested procedures and defendants do not perform these procedures in the regular course of their business, plaintiff mil incur the costs involved in creating the mirror images, recovering the information, and translating the information into searchable formats, as described below.
Id. (emphasis added). Here, plaintiff asks the Court to impose the expense of the requested search entirely upon non-party Marsh, including payment of her expert, Datatrack. Doc. # 56, p. 2 (“Tucker ... requests that the Court order Marsh to bear the costs of the inspection”).
B. Plaintiff seeks emails with speculative existence
Plaintiff concedes that she speculates, rather than knows of, the existence of the emails she seeks in her proposed inspection. See, e.g., Doc. #56 (plaintiff describes the “agreed upon purpose [of plaintiffs requested inspection] was to determine whether additional responsive electronic documents exist”). Thus, in balancing the interests of the parties with respect to the discovery sought under Rule 26(b)(2), the likelihood of finding the information sought remains in doubt.
The crux of plaintiffs request for inspection is her unsubstantiated belief that Marsh, through Carter, must have responded to an email from JRC Treasurer Ricardo Venegas, in which he sought additional information about Tucker’s claim. See Doc. #57, p. 5 (“It defies credibility that Marsh did not provide a response to its client regarding two pending claims about which it had inquired”); id., p. 6 (“the omission of several relevant emails from Marsh’s subpoena production is suspect”). In so stating, plaintiff fails to acknowledge that one can never truly predetermine another’s actions. Despite habit,
Moreover, plaintiff takes her argument a step farther by suggesting that Marsh’s failure to produce the hypothesized emails indicates that “spoliation” of “otherwise admissible evidence” may have occurred. Doc. # 57, p. 5. In so stating, plaintiff fails to acknowledge that Marsh diligently performed two previous searches in response to her prior production requests, “ultimately producing several hundred pages of documents in two phases.”
Even assuming arguendo that additional emails between Carter and Venegas actually exist, the burdens of plaintiffs proposed inspection upon Marsh outweigh the benefits plaintiff might obtain were she to obtain the emails through a Datatraek inspection. Plaintiff seeks to search, inter alia, the mirror images of eighty-three laptops — in effect, to dredge an ocean of Marsh’s electronically stored information and records in an effort to capture a few elusive, perhaps non-existent, fish.
C. Plaintiff has previously engaged in alternative, duplicative discovery on the issues of notice to defendant insurers and/or claims handling
Even if a document or record sought is otherwise “relevant” for purposes of discovery under Rule 26(b) of the Federal Rules of Civil Procedure, a court must limit discovery thereof if it “is unreasonably cumulative or duplicative, or can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Fed. R.Civ.P. 26(b)(2)(C). In the case at bar, plaintiff has obtained extensive discovery on her claims from other sources. She has made production requests and taken multiple depositions of defendants’ witnesses, yielding information on the central issues of notice of her claim to defendant insurers and the handling of said claim. Furthermore, as to the specific emails she seeks (i.e., those pertaining to Carter), plaintiff concedes that “Tucker had independently obtained several of these emails after subpoenaing Journal Register Company.” Doe. #57, p. 1. Thus, she acknowledges that alternative means of discovery have already yielded success in this matter.
“While courts interpret liberally the discovery provisions of the Federal Rules of Civil Procedure to encourage the free flow of information among litigants, limits do exist.”
D. Marsh is a non-party to the action and would endure significant burden if the proposed inspection were performed
Lastly, Marsh is not a party in this case and would be subjected to significant burden and expense in the event of the requested inspection. These are significant factors. Marsh is neither the plaintiff, who has come to court seeking recovery, nor one of the defendant insurers, who are alleged to have engaged in wrongdoing (e.g., unfair claims handling).
Marsh, through the sworn affidavit of its Director of Information Management and Strategy, Allison Brecher, has established that Marsh would face a “significant burden” if ordered to comply with plaintiffs current requested inspection. Doc. # 67-7 (Brecher Affidavit), ¶ 11. As explained by Brecher, Carter’s position with Marsh was one of eighty-three eliminated in 2008. Id., ¶ 7. During her employment, Carter had access to a PC, an assigned laptop and a Blackberry. Id., ¶ 3. By the time Tucker served Marsh with her subpoena, the computer assigned to Carter was no longer in Marsh’s possession. Id., ¶¶ 4, 6. Per company policy, upon termination of her employment, Carter’s equipment was wiped and re-imaged/reinstalled so that it could be re-deployed to another employee or disposed of when no longer useful for business purposes. Id., ¶ 4. When Carter was terminated in August of 2008, her laptop was delivered to Marsh’s IT Department to be mirror imaged and that image was to be assigned a “service desk ticket” of 4902508.
In addition to any business disruption Marsh might endure, Marsh would also face “a host of confidentiality concerns.” Doc. # 67, p. 21. If Tucker’s expert were to review and copy its computer hard drives, plaintiff would gain improper access to Marsh’s proprietary business information as well as information regarding Marsh’s clients for whom Marsh acts as a broker. Plaintiff would also have access to information protected by the attorney-client privilege. The only means of preventing such inappropriate disclosure would be for Marsh to have counsel present to review each document before allowing plaintiffs expert to view it — a procedure engendering what Marsh describes as a “huge, unnecessary expense.” Id. That expense would greatly expand were Marsh to then have to compose a privilege log to protect such documents. Id. Even if plaintiff were required to pay Datatrack to perform the proposed inspection, Marsh would necessarily bear the hefty expense involved in protecting confidential documents from disclosure.
Courts have acknowledged that inspection or testing of certain types of electronically stored information may raise issues of confidentiality or privacy. See, e.g., Ameriwood, 2006 WL 3825291, at *2; see also John B. v. Goetz, 531 F.3d 448, 457 (6th Cir.2008) (“the mere imaging of the media, in and of itself, raises privacy and confidentiality concerns” and “[duplication, by its very nature, increases the risk of improper exposure, whether purposeful or inadvertent”); Balboa Threadworks, Inc. v. Stucky, No. 05-1157-JTM-DWB, 2006 WL 763668, at *3 (D.Kan. Mar. 24, 2006) (“Courts have been cautious in requiring the mirror imaging of computers where the request is extremely broad in nature and the connection between the computers and the claims in the lawsuit are ... unsubstantiated in nature.”).
Plaintiffs hired Datatrack expert, Dorran Delay, attempts to contradict the sworn statements of Marsh Director Brecher regarding the size of the burden Marsh would endure in the proposed inspection. Delay postulates that “it would seem” that the service ticket for Carter’s laptop computer or “some other documentation would provide that valuable location information” about Carter’s records. Doc. #70-1 (Affidavit of Dorran Delay, Managing Member of Data-track Resources), ¶ 12. Delay disregards
Similarly, Delay questions, without being privy to Marsh’s IT capabilities, Brecher’s credibility in suggesting that Marsh “would need to add staff and buy more equipment and utilize a third party to process” the data requested, in light of the size of Marsh’s operation. Doc. # 70-1, ¶ 16. In reaching this conclusion, Delay discounts Brecher’s firsthand knowledge of Marsh’s computer systems, equipment, and employee roster. Put simply, Delay’s comments, based on conjecture rather than fact, provide the Court with no evidentiary assistance.
E. Balancing the interests of the parties
Courts are obliged to recognize that non-parties should be protected with respect to significant expense and burden of compelled inspections under Fed.R.Civ.P. 45(c)(2)(B)(ii). That Rule explicitly provides that an order compelling inspection must “protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Fed.R.Civ.P. 45(c)(2)(B)(ii).
Moreover, courts have focused on the importance of the Rule 26(b)(2)(C) proportionality limit to implement fair and efficient operation of discovery. See, e.g., Zubulake v. UBS Warburg, 216 F.R.D. 280, 283-84 (S.D.N.Y.2003). Thus “whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case.” Barrera v. Boughton, No. 3:07cv1436(RNC), 2010 WL 3926070, at *3 (D.Conn. Sept. 30, 2010) (citing Fed. R.Civ.P. 26, Advisory Committee Note to the 2006 Amendments to Rule 26(b)(2)).
Balancing the prospective burden to Marsh against the likely benefit to plaintiff from the proposed inspection, the Court concludes that the circumstances do not warrant compelling Marsh to endure inspection of its computer records by Datatrack. First, Marsh, through the sworn testimony of its Director of IT Management and Strategy, Brecher, has established the “significant expense” Marsh would endure should Data-track perform the proposed search. Doc. # 67-7, ¶¶ 7-11. Such expense would include the need to obtain additional equipment and staff to restore the records sought and attorneys to be present to prevent disclosure of confidential records. It is incumbent upon courts to protect non-parties from significant expense when considering motions to compel. Fed.R.Civ.P. 45(c)(2)(B)(ii).
Second, plaintiffs requested inspection is overly broad, seeking computers, electronically stored media, information, records, and policies well in excess of the Carter-related emails she allegedly seeks. The requested inspection thus, in any event, exceeds the boundaries of permissible discovery under Rule 26(b)(2)(C). Id. 26(b)(2)(C)(i), (iii).
Third, discovery on the issues relevant to Tucker’s claim (e.g., notice of claim to defendants and/or claims handling) has been ongoing between plaintiff and defendants for years. Discovery on the topics thought to be contained in the “missing” Carter emails is thus unnecessary in that it is both “cumulative or duplicative,” and “can be obtained from some other source that is more convenient, less burdensome, or less expensive.” Id. 26(b)(2)(C)(i). Moreover, in various depositions of Journal Register and defendants’ witnesses, plaintiff has been afforded “ample opportunity to obtain the information [sought] by discovery in the action.” Id. 26(b)(2)(C)(ii). Such prior discovery, in conjunction with the speculative existence of additional Carter-related emails, leads the Court to conclude that “the burden or expense of the proposed discovery outweighs its likely benefit.” Id. 26 (b) (2) (C)(iii).
Lastly, plaintiff has failed to establish “good cause” to compel inspection of Marsh’s records for emails that are not “reasonably
In sum, the Court concludes that, given plaintiffs extensive discovery in this action and the uncertain existence of the emails sought, the likely benefits plaintiff might derive from the requested search are outweighed by the substantial burden and expense such a search would impose on non-party Marsh. Fed.R.Civ.P. 26(b)(2)(B), (C). Marsh has cooperated in response to two prior discovery requests and should not be subjected to the “significant expense” that would result from complying with a Data-track inspection. See id. 45(c)(2)(B)(ii).
Y. CONCLUSION
For the foregoing reasons, plaintiff’s motion to compel inspection of non-party Marsh’s computer records (Doc. # 56) is DENIED. The Court recognizes that it has inherent authority to compel inspection of non-party Marsh’s electronic records under Rules 45, 34, and 37 of the Federal Rules of Civil Procedure.
Under the present circumstances, the Court finds that the costs imposed by compelling inspection would outweigh the movant’s asserted interest in gaining access to speculative emails. Put simply, plaintiffs proffered need to have Datatrack perform an expansive inspection of Marsh’s computer records for possible Carter-related emails is clearly outweighed by the substantial burden that inspection would impose on non-party Marsh (i.e., business dis