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District of New Jersey: Relevance of Documents Not Sufficient Good Cause to Order Discovery of Inacc

This past Friday, Judge Michael A. Shipp in Cristobal v. County of Middlesex, No. 16-4493 (MAS) (TJB) 2018 U.S. Dist. LEXIS 169320 (D.N.J. Sept. 28, 2018), denied a motion to vacate the order of Magistrate Judge Tonianne J. Bongiovanni, which denied a motion compel compliance with a subpoena.

Cristobal issued a subpoena to obtain information from the New Jersey Civil Service Commission about Sheriff's Officers dismissed pursuant to the same regulation that she was terminated under. The NJCSC submitted a certification attesting to the fact that a staff member would have to spend several weeks complying with the subpoena, and describing the search process. It also argued that the Plaintiff did not try to obtain the records from the Middlesex County's Sheriff's Department which issues them and may have them in a more accessible form.

Magistrate Bongiovanni found that the subpoena was unduly burdensome under Fed. R. Civ. P.ED 45, and that the NJCSC had shown the information was not reasonably accessible. Fed. R. Civ. P. 45(e) allows a party to decline to produce ESI which is not reasonably accessible because of undue burden or cost. The party has the burden of demonstrating that the ESI is not reasonably accessible. A court can still order the production of the ESI if the requesting party shows good cause. Fed. R. Civ. P. 26(b)(1) restricts evidence to that which is "proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties'relative access to relevant information, the parties'resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit." Judge Shipp concluded that, "Rule 26 limits discovery of ESI, despite the broad scope of permissible discovery, in the same manner as Rule 45." Cristobal, 2018 U.S. Dist. LEXIS 169320, at *5.

A magistrate's decision will only be reversed if it is clearly erroneous or contrary to law. Judge Shipp found that because the Plaintiff failed to show this, the decision could not be vacated. The Plaintiff failed to recognize the limits Fed. R. Civ. P. 45 puts on discovery, and show why the ESI was accessible or how there was good cause for the production despite the fact that it was not accessible. "Plaintiff had the opportunity to establish such good cause when briefing the original Motion to Compel. Plaintiff failed to do so as her Motion to Compel relied on arguments regarding the overall relevance of the documents." Cristobal, 2018 U.S. Dist. LEXIS 169320, at *10.

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