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 First Department decision in Tener v. Cremer1 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.,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 First Department addressed “the obligation of a nonparty to produce ESI deleted through normal business operations”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.
