In Relativity’s® 2022 Data Discovery Legal Year in Review e-book (8th ed.), David Horrigan, Esq., highlighted a fascinating case, Martley v. City of Basehor, 2022 WL 1302820 (D. Kan. May 2, 2022)(“Martley I”). Mr. Horrigan described the case as a “clever … use [of] the Federal Rules of Civil Procedure to find new ways to get the discovery you need if a party is failing at e-discovery obligations.”
In short, in Martley I, the defendants did a poor job producing ESI. The plaintiff, a former police chief and city administrator, made an end run around the obstacle by issuing subpoenas to the City defendant’s former IT service provider, NetStandard Data Center.
The court wrote: “The subpoena seeks to have NetStandard run certain searches on City email data that might still be housed on NetStandard’s servers and produce all responsive emails.” Id. at * 1. Defendants moved to quash it. The court wrote that it was the tenth discovery motion in the case. It both granted the motion to quash and ordered specific relief.
In a later decision, the court wrote: “Although the Court recognizes the need for a comprehensive record, the Court does not recall a summary-judgment motion with this many facts or with such unhelpful citations.” 2022 WL 16714127, at *2 (D. Kan. Nov. 4, 2022) (“Martley II”), appeal filed to 10th Circuit (Nov. 23, 2022). Summary judgment was entered for the defendants. Id. at *15. In Martley II, the court wrote:
The Court again reiterates that this has been a contentious case. The parties and their counsel have litigated it vigorously, which has unfortunately sometimes clouded the issues and undoubtedly led to unnecessary expense. The Court has endeavored to push through that antagonism and focus on the law and the facts presented and give a detailed analysis of the issues. The facts of this case do not support any triable issues on the legal claims asserted, and no reasonable jury could find for Martley on the record before the Court.
In Martley I, defendants argued that plaintiff should have timely sought discovery from them and that he could not now make an end run: “Defendants argue Plaintiff attempts to use a subpoena to avoid compliance with Federal Rules 26 and 34. They argue Plaintiff seeks to obtain documents via subpoena after failing to obtain them when he served his Sixth Request for Production too late for the response to occur prior to the close of discovery.” Id. at *2.
Plaintiff responded that defendant failed to properly search for and produce documents he had previously requested. In the court’s words: “Plaintiff argues based on Defendants’ failures to fully search for responsive documents, his use of a subpoena to NetStandard is justified.” In short, the end run was permissible according to the plaintiff.
The court discussed several problems presented by the end run:
The Court is uncomfortable with Plaintiff’s tactic of going around Defendants to their former IT vendor to conduct searches on any of the City’s email data it may still have in its possession after its services were terminated. The Court questions whether the documents are in the control of NetStandard and questions whether it should be burdened with the production. [emphasis added].
The court quoted the Sedona Conference for the proposition that: “It is a well-established principle that the burdens of discovery should fall on the parties to the litigation instead of non-party.” Id. at *4. Further, after describing its prior review of materials in the case, it wrote: “The Court is concerned about having NetStandard produce documents produced pursuant to either of these requests without Defendants’ counsel having the opportunity to review the documents for privilege.” It also mentioned Stored Communications Act issues. It explained that: “For the reasons discussed above, the Court does not believe a third-party subpoena to NetStandard is the appropriate vehicle to get the information Plaintiff seeks.” The court stated: “For these reasons, the Court will quash Plaintiff’s subpoena, both the original and amended, to NetStandard.”
It added: “
The court added:
Where there are more questions than answers regarding the document production in this case, it is not surprising that Plaintiff distrusts Defendants’ efforts to search for responsive documents. To be clear, the Court is not accusing the City or its counsel of any misconduct. But it appears the City personnel, counsel, and even its IT vendor, involved in the litigation hold, imaging, and searching processes may not have been up to the technical nature of the task.
Id. at *4 (emphasis added). It stated that an earlier request for production was broad enough to have covered some of the unproduced information.
The court then fashioned a remedy:
Although the Court will not reopen discovery, the Court orders the parties to cooperate and share the expense to have a digital forensic or eDiscovery vendor run the searches set out in the subpoena to NetStandard, with the limited timeframe as above, on the timeline and as set out below…. [emphasis added].
This was followed with a list of seven specific actions that included retention of a neutral forensic company at shared expense, plus a privilege review process.
Based on the foregoing, the Court orders both the original and amended subpoenas to NetStandard be quashed. The parties shall cooperate and share the expense incurred to have a neutral digital forensic or eDiscovery vendor run the searches set out in the subpoena to NetStandard on the devices identified in this Order as set out above.
Id. at *5.
The court reached its result without the need to refer to any contractual confidentiality terms in the contract between NetStandard and the City; however, counsel drafting or reviewing such contracts should give consideration to including routine contractual confidentiality and notice of subpoena provisions.
Martley I appears to be a sound resolution of a contentious issue. A parallel or similar result was reached in a less contentious case involving non-party cell phones. See Maryland Appellate Decision Permitting Limited Forensic Search of Non-Parties’ Cell Phones.
 Issues relating to notice of the subpoena, control over the documents, and standing to move to quash are not described in this blog. The court applied the legal right to control standard that is not applicable in the District of Maryland.