United States District Court, Northern District of Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
JEFFREY F. GILBER UNITED STATES MAGISTRATE JUDGE
This matter is before the Court on two motions: Defendant's Motion for Rule to Show Cause [ECF 31] and Plaintiffs Motion to Compel [ECF 33]. For the reasons discussed below, Defendants" Motion for Rule to Show Cause is denied, and Plaintiffs Motion to Compel is denied in part and entered and continued in part.
I. Defendant's Motion for Rule to Show Cause
In its Motion for Rule to Show Cause, Defendant Solomon Bauer Giambastiani Architects, Inc. ("SBC") asks the Court to issue a rule to show cause against third parties City Real Estate ("CRE") and Wiss, Janney Elstner Associates ("WJE") for their failure to produce all documents requested in subpoenas SBG served upon them pursuant to Federal Rule of Civil Procedure 45. The Motion also was directed at other third parties but those disputes have been resolved.
SBG was involved in the design of the art collection storage system at the offices of Plaintiff Terra Foundation for American Art ('Terra"). SBG's Answer [ECF 10], at ¶ 4. The gist of Terra's complaint appears to be that SBG breached its contract with Terra because the art vaults are deficient in a number of ways. SBG denies the allegations. Id. at ¶ 5.
The Rule 45 subpoenas SBG served on CRE and WJE seek their entire project files relating to the construction of Terra's office space, including construction of the art vaults which is the subject of the instant litigation. CRE and WJE object to the subpoenas as over broad and unduly burdensome in requiring them to produce their entire project files. Terra's counsel in this case also represents third parties CRE and WJE, and Terra has joined CRE and WJE in objecting to the subpoenas on the ground that the information requested is not relevant. Despite their objections, CRE and WJE represent that they have produced all of their documents "that bear any connection to" the art vaults but have not produced their entire files relating to the whole construction project.
CRE and WJE contend that their entire project files contain a vast amount of documents that have nothing to do with the design and construction of the art vaults. Specifically, CRE represents that it has produced over 11, 000 pages of documents relating to the art vaults. CRE states that there is an additional four gigabytes of data in its files, comprising between 60, 000 and 2, 680, 000 pages, and that it would cost CRE an additional $100, 000 to review and produce those documents. WJE states that it has 4, 500 additional pages that may relate to the construction of Terra's office space that have not been produced. WJE estimates it would cost approximately $15, 000 to go through the additional documents.
Both CRE and WJE argue that they should not have to spend the time, effort and money to review and produce any additional documents because, among other things, they have produced documents relating to the art vaults and all other information is not relevant and/or not likely to lead to the discovery of admissible evidence. Implicitly, these third parties also seem to be arguing that the burden or expense of producing the requested documents outweighs the likely benefit of producing them. See Fed.R.Civ.P. 45(e)(1)(D) incorporating by reference Fed.R.Civ.P. 26(b)(2)(C). The Court agrees that CRE and WJE do not have to produce the additional documents requested by SBG.
Pursuant to Rule 45, a party is entitled to require a non-party to produce documents so long as reasonable steps are taken to avoid imposing undue burden or expense on the person or entity subject to the subpoena. See Fed.R.Civ.P. 45(d)(1) and (e)(1)(D). It is the non-party status that is a significant factor in determining whether a request is too burdensome. '"Although discovery is by definition invasive, parties to a lawsuit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs." United States v. Amerigroup Illinois, Inc., 2005 WL 3111972 (N.D. Ill. 2005) (quoting Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st Cir. 1998)). That is not to say, however, that any burden or expense is excessive; only when a non-party is subjected to "'significant expense" should the burden of cost be weighed. See, e.g., DeGeer v. Gillis, 755 F.Supp.2d 909, 928 (N.D. Ill. 2010).
Given that CRE and WJE already have produced their documents relating to the art vaults, the Court finds that it would be unduly burdensome and cost prohibitive to require CRE and WJE review and produce additional documents relating to Terra's office space generally. The Court finds that requiring them to expend an additional $15, 000 let alone $100, 000 would be excessive and an undue burden on a third party.
The Court is not persuaded by SBG's argument that it is not fair that Terra's counsel has had the opportunity to look at the additional documents and that SBG cannot review the documents. First, it is not clear that Terra or its counsel actually have looked at the additional documents in the possession of CRE or WJE aside from SBG's ipse dixit. Moreover, just because Terra and/or its counsel may have looked at certain documents that have not been produced by these third-parties is not a sufficient reason to require their production by the third parties without more evidence to demonstrate that they are relevant or likely to lead to the discovery of admissible evidence.
Accordingly, the Court declines to issue any rule to show cause, and SBG's Motion [ECF 31] is denied.
II. Plaintiffs Motion to Compel
In its Motion to Compel, Terra seeks to compel SBG to produce (1) third party documents in a specified electronic format, and (2) certain documents that have been withheld on the basis of privilege. As to the third party documents, Terra argues that SBG is required to produce the third party documents in a specific electronic format, i.e., native and single page black and white TIFF format, along with a Concordance load file -- the same format ...