United States ex rel. Parikh v. Premera Blue Cross, Case No. 06-MC-00097 (S.D. Ohio Mar. 16, 2007)
PricewaterhouseCooopers ("PwC") is a non-party in this discovery dispute. Defendant Premera Blue Cross ("Premera") hired PwC to audit its receipt of Medicare payments. In November 2006, PwC was ordered by subpoena to produce all emails between it and Premera. PwC produced some but not all of the requested electronically stored information ("ESI"). So, qui tam Plaintiff filed a motion to compel.
The court was most concerned with PwC's argument that the cost of retrieval of the archived emails is burdensome, especially when PwC did not provide the court with any standard by which to measure or access the burden. Although the court inferred that the cost of retrieving archived emails would be "considerable," it found that that cost has already been assumed by PwC and the dispute was really over the cost of production, which the court summarily concluded is "minimal."
We understand that PwC has and will produce e-mails that are not archived and are otherwise available and we infer that the cost of retrieving archived e-mails would be considerable. Nevertheless, if PwC, as stated in its Memorandum in Opposition, “is preparing to produce some of Mr. Burrell’s e-mails,” the implication is that it has retrieved all e-mails. Taking PwC at its word then, the cost of retrieval has already been assumed and the argument is over the cost of production. In this Court’s opinion, the cost of production is minimal. (Italics in original; boldface added.)
In sum, the court ordered PwC to produce the disputed 6,500 emails and Plaintiff to pay the "reasonable cost of production."
The court also ruled that a non-party to a litigation who has produced accessible and unarchived ESI to the satisfaction of the Government establishes at least a reasonable standard of production for a non-party.
We understand that production satisfactory to the Government is not necessarily satisfactory to the qui tam Plaintiff, but such level of disclosure does establish at least a reasonable standard of production for a non-party. (Emphasis added.)
This ruling suggests that to avoid sanctions, a non-party must at least produce ESI satisfactory to the Government (assuming, of course, that the Government is involved in the case).