Plaintiff “Entitled” to Search Non-Party’s Personal Hard Drive Pursuant to Modified Subpoena

Wood v. Town of Warsaw, N.C., No. 7:10-CV-00219-D, 2011 WL 6748797 (E.D.N.C. Dec. 22, 2011)

Defendant moved to modify a subpoena which sought access to a non-party’s personal hard drive.  Upon plaintiff’s clarification that he would bear the costs of the search and cooperate to negotiate search terms and that he sought only the non-privileged ESI identified by search terms and not all contents of the drive, the court ordered that the non-party’s counsel could review the results before production and allowed the search to go forward.

In this employment discrimination case, defendant sought to modify a subpoena seeking inspection of a non-party’s personal hard drive and specifically objected that the subpoena was overly broad, unduly burdensome, not calculated to lead to the discovery of admissible evidence, and sought private, irrelevant information.  The non-party was the former town manager and allegedly involved in plaintiff’s termination—the underlying issue in this case.

Beginning its discussion, the court first identified the appropriate considerations when addressing a motion to quash or modify a Rule 45 subpoena: 1) the relevance of the discovery sought, 2) the requesting party’s need, and 3) the potential hardship to the party subject to the subpoena.  The court then turned to the specific objections.

Addressing the objections to the subpoena, the court identified several particularly pertinent facts, namely that plaintiff was willing to bear the costs of the search and to negotiate search terms and that he did not seek production of the entire contents of the drive, but only those non-privileged documents identified by the keyword search.  Regarding the potential relevance of the drive’s contents, the court noted the non-party’s involvement in plaintiff’s termination and opined regarding the likelihood of recovering relevant evidence:

In this age of smart phones and telecommuting, it is increasingly common for work to be conducted outside of the office and through the use of personal electronic devices.  Therefore, it is not unreasonable, despite Burrell’s assertion to the contrary, that some relevant information may be found on his personal computer’s hard drive.

The court further reasoned that a protective order and counsel’s review of the results before production would address any concerns regarding privacy.  Accordingly, “having weighed the factors of relevancy, need, and burden” the court found that Plaintiff was entitled to search the non-party’s personal hard drive and that the “proposed search by a forensic expert is a reliable and efficient method to accomplish the search with minimal burden,” but modified the subpoena to clarify that the non-party’s attorney would review the results of the keyword search prior to production.

Interestingly, in response to the non-party’s assurances that he would produce any relevant information on his personal hard drive pursuant to specific requests for production within the subpoena, the court (agreeing with the plaintiff) reasoned that the requests pertained only to “tangible documents” and not to ESI and therefore would not “encompass the information sought by the request to search Burrell’s personal hard drive.”  Among other things, the requests in question sought production of “Any and all letters … recordings, photographs, emails, texts, tweets, posting of any kind or nature, and other documents whether in printed, handwritten or other tangible format relating to the Plaintiff at any time during the period from January 1, 2007, to December 31, 2009[.]” (Emphasis added.)