Electronic discovery in an average case can be a hit-and-miss affair. The served demands usually are pretty broad, but the actual production often is limited by practical concerns and agreements between counsel. The hope, and sometimes unmet expectation, is that any failures to disclose in this process are by accident.
Emails have become an especially important part of this e-discovery because of their tendency to illuminate the state of the contemporaneous mind. They often display a candor unlike other forms of communication, and for this reason they sometimes are deleted, stored or sent on a non-work account, or unfortunately not produced at all, if especially damaging. And yet they may tell a compelling story in a few words, as was said in New Jersey: “[t]ime for some traffic problems in Fort Lee.” That email says more than a thousand-page deposition. (See “A Bridge to Scandal: Behind the Fort Lee Ruse,” New York Times, Jan. 12, 2014.)
A countermeasure for non-production is aggressive e-discovery, but that is really expensive. Instead, it often is far easier to seek copies of emails or documents from others in the email traffic chain, including non-parties involved in transactions or events. The mere possibility of this production may have an important prophylactic effect, because the knowledge that an electronic copy of an email or document is “out there” may enhance the odds of production.
The problem is that electronic discovery requests can be a burden on third parties, who understandably may object to such requests, reasoning that the parties should be burdened first. How can we balance this reasonable concern with the need to obtain evidence which otherwise may not come to light?
This balance of interests does not require a blanket rule that third-party motions to quash be granted, simply for the reason that the disclosure may be obtainable elsewhere, such as from a party. If that is to be the rule, the risk of nondisclosure of emails will certainly increase, as the parties would be cut off from using third-party disclosure to be sure that party disclosure was complete.
In instances where the risk of nondisclosure is great and where the possible non-disclosed information could be determinative in the litigation, a blanket rule which provides for the automatic grant of a third party’s motion to quash on the sole basis that disclosure may be obtainable elsewhere would seem inappropriate. This is especially true in instances in which the burden of disclosure on the third party is not a matter of great trouble or expense. Unfortunately, numerous cases appear to adopt this blanket approach.1
Standards in Departments
These cases rely on the wording of paragraph 4 of CPLR 3101(a), and hold that it is not sufficient to show that the requested information is “material and necessary” to the prosecution or defense of a case, which is the standard for party disclosure. Except in the Fourth Department,2 third-party disclosure requires more than merely showing that the information is “material and necessary” because of CPLR 3101(a)(4), which allows for discovery from third parties “…upon notice stating the circumstances or reasons such disclosure is sought or required.”
This language dates to 1984, when the Legislature eliminated the requirement that the court authorize the third-party subpoena, and deleted language that allowed the third-party disclosure only on a showing of “adequate special circumstances.”3 Both of these changes were intended to ease third-party disclosure, and the “special circumstances” language was replaced by a mere statement of the reason for the subpoena, rather than a formal standard to be met.
Nevertheless, the special circumstances standard has maintained its influence in the First, Second and Third Departments. Despite the First Department’s 1998 holding in Schroder v. Consolidated Edison Co. of New York that “[t]here is no longer any need for special circumstances,”4 the First Department in Tannenbaum v. City of New York subsequently held that a denial of a third-party deposition was proper because the “plaintiff failed to show special circumstances or that the information sought was relevant and could not be obtained from other sources.”5 Given the inconsistency between Schroder and Tannenbaum and subsequent case law in the First Department granting third-party motions to quash subpoenas where the information sought is available from other sources,6 the relevant standard for third-party disclosure in the First Department remains unclear.
In addition, while the Second Department also expressly disavowed the special circumstances standard in Kooper v. Kooper,7 the court still emphasized that more than “mere relevance and materiality is necessary to warrant disclosure from a non-party.”8 What that higher standard requires is very difficult to pin down, and the reason parties and nonparties still are treated differently on this issue appears to depend more on the statutory language than on policy. The Third Department also continues to apply a higher standard due to the statutory wording, which it made clear in the 2010 case of Troy Sand & Gravel v. Town of Nassau.9
In Troy Sand & Gravel, the Third Department considered whether the 1984 change in CPLR 3101(a)(4) should cause the court to abandon its prior “special circumstances” precedents. The court pointedly declined to do so, because it would “render the distinction drawn in the statute between parties and nonparties meaningless” and violate the tenant of statutory construction that all parts of a statute must be given meaning. Although special circumstances “as defined prior to the 1984 amendment” was “no longer applicable,” the court nevertheless decided to “adhere to [its] precedent” and hold that “something more than mere relevance or materiality must be shown.”
Again, the questions are: how much more, and why can’t we depend on the third party (who is making the motion to quash) to state the burdens so the court can balance them against the asserted need of the party seeking disclosure?
“Special circumstances” also apparently does not mean that the party is seeking a reasonable amount of redundancy for items sought in e-discovery. However, that redundancy can ensure that all the available disclosure is provided, and often this can be done without unreasonable burden on the third party.
However, numerous cases seem to flatly deny third-party disclosure if the requesting party cannot show that the information is “unavailable from other sources.”10 These holdings do not address reasonable redundancy for completeness purposes, and ironically the standard might protect a party who improperly fails to make a required disclosure.
Assuming that occurs in a case, the demanding party will face an “unknown unknown” problem—they can never be completely sure what is and is not available. All the data they seek is in the hands of others, and perversely, if the critical email is not disclosed for whatever reason, the party seeking disclosure will be unable to meet the unavailability standard. They will have no way to show the undisclosed document actually exists.
CPLR 3101(a) allows “full disclosure of all matter material and necessary in the prosecution or defense of an action, regardless of the burden of proof.” This certainly is consistent with a broad disclosure policy, constrained only by reasonable and relevance standards. Notably, the federal counterpart to CPLR 3101 (Rule 26 of the Federal Rules of Civil Procedure) contains no added requirements for disclosure from a non-party.11 In the age of electronic discovery, “availability” of disclosure from other sources is an impractical and indefinite standard.
A better approach is to let the court strike the reasonableness balance on a case-by-case basis, which it already is free to do by granting a CPLR 3103 protective order, or causing the reasonable production expenses of the third party to be defrayed by the party seeking the discovery, under CPLR 3122(d).
The Chief Administrator’s Advisory Committee has suggested such an amendment to CPLR 3101(a), to eliminate the four existing paragraphs of subdivision (a), and simply allow disclosure from “any person” according to the material and necessary standard. For non-party subpoenas, the only proposed new requirement is that the subpoena shall state the nature of the action.12
The clear import of both of the 1984 amendments to CPLR 3101(a)(4) was to broaden third-party disclosure, without unreasonably burdening the third party. However, if such burdens exist and are unreasonable, there is not much risk the third party won’t complain, by suggesting that the demanding party alleviate the burden or cost, or failing that, by a motion to quash. Should the motion ensue, CPLR 3103 provides all the tools needed to adjust the equities.
Thomas F. Gleason is a member of Gleason, Dunn, Walsh & O’Shea in Albany and an adjunct professor at Albany Law School.
1. See Menkes v. Beth Abraham Services, 89 A.D.3d 647, 648 (1st Dept. 2011); MBIA Ins. Corp. v. Credit Suisse Securities (USA) LLC, 103 A.D.3d 486, 487 (1st Dept. 2013).
2. Kephart v. Burke, 306 AD2d 924, 925 (4th Dept. 2003); Catalano v. Moreland, 299 AD2d 881, 882 (4th Dept. 2002).
3. See L1984, ch294, section 2; Cirale v. 80 Pine Street Corp., 35 NY2d 113, 116 (1974).
4. Schroder v. Consolidated Edison Co. of New York, Inc. 249 AD2d 69, 70 (1st Dept. 1998).
5. Tannenbaum v. City of New York, 30 AD3d 357, 358-359 (1st Dept. 2006).
6. Reich v. Reich, 36 AD3d 506, 507 (1st Dept. 2007); Connolly v. Napoli, Kaiser & Bern, LLP, 81 AD3d 530, 531 (1st Dept. 2011).
7. Kooper v. Kooper, 74 AD3d 6, 16 (2d Dept. 2010).
8. Kooper v. Kooper, 74 AD 3d 6, 16-19 (2d Dept. 2010).
9. Troy Sand & Gravel v. Town of Nassau, 80 AD3d 199, 201-202 (3d Dept. 2010).
10. See, e.g. Lerner v. State of New York, 113 AD3d 916 (3d Dept. 2014); MBIA Ins. Corp. v. Credit Suisse Securities (USA) LLC, 2013 WL 535454 (Sup. Ct. New York County 2013).
11. David D. Siegel has noted that the ease of third-party disclosure should be greater after the abolition of the “special circumstance” requirement, but that the federal counterpart to CPLR 3101, Rule 26 of the Federal Rules of Civil Procedure, contains no added requirements for disclosure from a non-party. He notes that this has been cited as a reason for plaintiffs to opt for the federal rather than state courts. See Siegel, New York Practice [5th Ed.], §345, p 572.
12. Report of the Advisory Committee on Civil Practice to the Chief Administrative Judge of the Courts of the State of New York, January 2014, pp 57-60.