Tucker v. American International Group, Inc.
281 F.R.D. 85 (2012)
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Rule of Law:
A court will not compel a non-party to undergo a broad and burdensome forensic inspection of its electronically stored information when the request is based on speculation, the non-party has already made good-faith efforts to comply with discovery, and the burden and expense of the proposed inspection outweigh its likely benefit.
Facts:
- Teri Tucker was unlawfully discharged by her employer, Journal Register East, in 2003.
- Marsh USA, Inc. acted as the insurance broker that procured an employment practices liability insurance policy for Journal Register from insurers AIG and National Union.
- A Marsh employee, Lucy Carter, handled Journal Register's applications and correspondence regarding this policy.
- After Tucker sued her insurers to collect on a judgment, she discovered that Marsh's initial document production was missing certain emails, including a specific April 19, 2007 email from Journal Register's Ricardo Venegas to Lucy Carter, which Tucker had already obtained from Journal Register.
- In response to Tucker's concerns, Marsh conducted a second, more thorough search of its electronic records by restoring backup tapes related to Carter's email profile.
- Tucker found the second production still deficient because the internal emails seemed to stop abruptly on April 24, 2007, and she believed a response to Venegas's inquiry must exist.
- Tucker's counsel proposed that an independent expert, Datatrack, retained and compensated by Tucker, conduct a direct forensic inspection of Marsh's computer systems, which Marsh ultimately refused.
Procedural Posture:
- Teri Tucker previously obtained a $4 million judgment against her former employer, Journal Register East, in a prior action.
- Tucker then commenced the present action in the U.S. District Court for the District of Connecticut against her former employer's insurers, American International Group, Inc. and National Union, to collect on that judgment.
- During discovery, Tucker served a subpoena on non-party Marsh USA, Inc., the insurance broker, to produce documents.
- Marsh produced several hundred documents based on a search of its hard copy files.
- After Tucker's counsel noted missing emails, Marsh performed a second search by restoring backup tapes and produced additional electronic documents.
- Finding the second production still incomplete, Tucker filed a Motion to Compel Inspection of Third Party Marsh USA, Inc.'s Computer Records.
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Issue:
Does a court compel a non-party to submit to a forensic inspection of its electronic data systems when the requesting party speculates that additional relevant documents exist, the non-party has already conducted multiple searches, and the proposed inspection is overly broad and imposes a significant burden and expense on the non-party?
Opinions:
Majority - Haight, Senior District Judge
No. A court will not compel a non-party to submit to such a forensic inspection because the burden and expense of the proposed discovery outweighs its likely benefit. The court denied the motion to compel based on a proportionality analysis under Federal Rules of Civil Procedure 26 and 45. The court found that Tucker's proposed inspection was overly broad, seeking access to entire computer systems and company policies, not just the specific emails she claimed were missing. Furthermore, her request was based on the speculative belief that certain responsive emails must exist, which does not justify a sweeping 'fishing expedition' into a non-party's confidential records. The court also determined the request was cumulative and duplicative, as Tucker had already obtained discovery on the relevant issues from other sources, including the defendants and Journal Register. Most importantly, the court emphasized Marsh's status as a non-party, which requires special protection from significant expense and undue burden, and found that the detailed affidavit from Marsh established that the proposed search would be immensely burdensome, costly, and would compromise the confidentiality of its other clients' information.
Analysis:
This ruling exemplifies the critical role of the proportionality principle in e-discovery, particularly when discovery is sought from non-parties. The court's decision reinforces that a mere suspicion of missing documents is insufficient to warrant a highly intrusive, burdensome, and expensive forensic examination of a non-party's electronic systems. It establishes a strong precedent for protecting non-parties from overly broad 'fishing expeditions,' requiring the requesting party to demonstrate a compelling need that outweighs the significant burden imposed. This case serves as a practical guide for courts in balancing the need for relevant information against the duty to protect uninvolved entities from the significant costs and disruptions of litigation.
