Case law on nonparty cost shifting has been slow to develop, but a few lessons are available. Take, for example, the doctrine of mutually assured destruction, which led to a half-century of uneasy standoff between the United States and the former Soviet Union during the Cold War. The doctrine also has a moderating influence on the scope of parties' electronic discovery -- at least in cases between large corporate entities.
A party that opts to request extensive and invasive mining of electronic data is likely to receive a similarly extensive and invasive request in return. This deterrent effect is absent, however, in discovery requests made to nonparties. As one widely cited opinion, Linder v. Calero-Portocarrero, on nonparty discovery put it: "When nonparties are forced to pay the costs of discovery, the requesting party has no incentive to deter it from engaging in fishing expeditions for marginally relevant material."
This imbalance of power could increase dramatically when the upcoming changes to the federal rules concerning electronic discovery take effect. For the new rules not only make clear that parties must confront the challenges of responding to requests for electronically stored information (ESI), but also now require -- through changes to Rule 45 -- nonparties to respond to such requests.
In so doing, the amendments appear to remove any argument that nonparties might once have had that electronic discovery is per se unduly burdensome, while also increasing the potential costs and burdens that nonparties will face in the future.
Despite expanding the scope of Rule 45 to encompass ESI and increasing the e-discovery burdens on nonparties, the amended rules now provide nonparties two chances to argue in appropriate cases that those burdens are undue.
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By: John F. Baughman and H. Christopher Boehning