Citing “Unique Burden” of Restoring Email from Backup Tapes and “Special Weight” to be Accorded Non-Party’s Status, Court Grants Motion to Quash Subpoena

United States v. Amerigroup Ill., Inc., 2005 WL 3111972 (N.D. Ill. Oct. 21, 2005)

In this qui tam suit filed under the False Claims Act and the Illinois Whistelblower Act, plaintiff alleged that defendants submitted false or fraudulent claims for payment by omitting certain information from quarterly statements submitted to the Illinois Department of Healthcare and Family Services (“HFS”). Defendants served a subpoena upon HFS seeking, among other things, email from certain employees. HFS moved to quash, and after several conferences with the court, defendants agreed to limit the request to the emails of two individuals currently employed by HFS and one former employee. Defendants also agreed that HFS could limit the search terms to be used in retrieving the desired emails to those set out by the defendants. Unhappy still, HFS maintained that the subpoena must be quashed under Rule 45(c)(3)(A)(iv) because the request was unduly burdensome and the emails were irrelevant and unlikely to lead to the discovery of admissible evidence.

HFS presented evidence of burdensomeness, and explained that its system and backup system would not allow the retrieval of emails for the entire period specified in the subpoena. All that was available was one-year’s worth of emails, and HFS argued that even that would constitute an undue burden. HFS presented an affidavit from the chief of its bureau of information systems (Mr. Perry), which described HFS’s email system and backup system in detail: the HFS email system comprised 23 “post offices” residing on specified servers. Each HFS employee was provided an individual email account in the post office appropriate to their location. The post offices were backed up incrementally on a daily basis, while a full backup of all post offices was performed on weekends. The daily, incremental backup tapes were retained for one month, and the weekly backup tapes were retained for one year. The affidavit went on to explain the steps needed to restore the appropriate backup tapes and concluded that a review of one year’s worth of one employee’s emails would take approximately six weeks.

The defendants did not challenge any of the information presented by HFS. The court observed that defendants could have deposed Mr. Perry, or retained an expert of their own to opine on the validity of Mr. Perry’s assertions, at least in a general sense. The court further noted that Mr. Perry’s assessment was “confirmed, in the main, by the cases, which have recognized that the task of restoring emails through the use of backup tapes is a ‘unique burden.'” 2005 WL 3111972, at *3 (citation omitted).

The court was unmoved by the defendants’ offer to pay the costs that might be incurred in retrieving the emails. “Expense is but a part of the burden.” Id. at *4. The uncontested evidence showed that the process of retrieving the emails would entail the extensive use of equipment and internal man-power — 18 weeks of effort. “That burden, which is undeniably substantial, exists independently of the monetary costs entailed.” Id.

The court also found that the claimed criticality of the emails was anything but certain. It noted that, when the defendants filed their motion for summary judgment in December 2004, they were obviously satisfied that the evidentiary record they had compiled was sufficiently comprehensive and compelling that there were no disputed issues of material fact on the question of the government knowledge defense.

Yet, in this court, they now insist that the emails are indispensable to the defense that they thought was so straightforward and uncompromising in their favor that they were entitled to judgment as a matter of law under Rule 56. The tension between the current claim in this court that the evidence is so critical that any burden that the non-party HFS must endure is outweighed by the need for the evidence and the position taken in the summary judgment motion is as irreconcilable as it is obvious.

Id. at *7. The court concluded that, while the emails may be relevant, the efforts required for its production would be unduly burdensome, especially given HFS’s non-party status. The court granted HFS’s motion to quash the subpoena as to email.