Recent Case Law Provides Guidance for ESI Production

Production of electronically stored information (ESI) is now an expected part of the discovery process, and it is important for counsel to be aware of the recent 1st Department decision in Tener v. Cremer[FOOTNOTE 1] which addressed a variety of issues concerning a nonparty's obligation to produce ESI. In light of this decision, which was issued in the context of a contempt motion against a nonparty, counsel should review it as guidance in seeking to understand how courts may view the critical and often issue-dispositive defense of "inaccessibility" to the requested ESI. A recent trial court decision from Monroe County, Dartnell Enter. Inc. v. Hewlett Packard Co.,[FOOTNOTE 2] held that a party must index its ESI to each specific document demand and ordered that responsive materials need to be produced in electronic form (including its metadata), even if "hard" copies of such materials have been produced already. Finally, recent court decisions have found social media ESI to be particularly relevant with respect to the issue of damages, and have authorized its production.

DETERMINING "INACCESSIBILITY"

In Tener, the New York Appellate Division, 1st Judicial Department addressed "the obligation of a nonparty to produce ESI deleted through normal business operations"[FOOTNOTE 3] in connection with an underlying discovery dispute in which the nonparty asserted, as a defense to production, that it "did not have the ability to produce the materials plaintiff demanded" and that "it believed it could not, as a nonparty, be required to install forensic software on its system" that could arguably access such information.

Plaintiff served a subpoena seeking the identity of all persons who accessed the internet on a certain day via a particular IP address in furtherance of prosecuting her defamation claim. The subpoena, accompanied by a preservation letter, was served more than one year after the date in question. The 1st Department noted that "plaintiff's only chance to confirm the identity of the person who allegedly defamed her may lie with [the nonparty]." Movant's computer forensic expert opined that the nonparty could "access the information using software designed to retrieve deleted information." The 1st Department found that because "good cause" had been shown, a cost-benefit analysis was necessitated "to determine whether the needs of the case warrant retrieval of the data."

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Source: law.com
By: Mark A. Berman