## Facts

- Randall S. DeGeer sued M. Scott Gillis, Joseph R. Shalleck, and Leroy J. Mergy in a dispute over bonus/incentive compensation allegedly tied to “Earn-Out” payments connected to a consulting practice acquired by Huron Consulting Services LLC.
- In discovery, defendants served a Federal Rule of Civil Procedure 45 subpoena on non-party Huron seeking electronically stored information (ESI), including emails and documents concerning DeGeer, the consulting division’s operations, and compensation/Earn-Out matters.
- After extensive communications about the scope and method of ESI collection, Huron produced ESI that defendants viewed as incomplete.
- Defendants sought a second, more targeted ESI search, asserting key custodians and search terms were omitted from the initial effort.
- Huron opposed further searches, contending that additional ESI collection would impose undue burden and significant expense, and that earlier costs stemmed from the breadth and inefficiency of the parties’ approach.
- Defendants moved to compel additional compliance with the non-party subpoena.

## Issues

1. Under Rule 45, when may a court compel a non-party to perform additional ESI searches despite objections of undue burden and expense?
2. How should costs be allocated for non-party ESI production when compliance involves significant expense and prior collection efforts were inefficient or poorly coordinated?

## Decision

- The court granted the motion to compel in part and denied it in part.
- The court ordered Huron to conduct a second, more focused ESI search and to produce additional responsive, non-privileged materials, subject to court-imposed limits on scope.
- The court limited custodians, search terms, and temporal scope to align production with relevance and proportionality and to reduce burden on the non-party.
- The court ordered partial cost-shifting/cost-sharing so Huron would be protected from significant expense resulting from compliance.

## Legal Principles

- Rule 45 requires subpoenaing parties to take reasonable steps to avoid imposing undue burden or expense on a subpoena recipient, and courts must enforce that duty.
- When a court orders a non-party to comply with a subpoena, it must protect the non-party from significant expense associated with compliance.
- Subpoenas that subject a person to undue burden should be quashed or modified; for ESI, courts may tailor production by limiting custodians, search terms, and date ranges.
- Non-party ESI production is assessed with heightened sensitivity to burden and expense compared to party discovery; proportionality and cost-effectiveness are central considerations.
- Discovery practice should be cooperative and transparent, especially for ESI (including disclosure and negotiation of custodians and search methodologies); failures by either side may justify court-imposed limitations and cost allocation.

## Conclusion

The court required a narrowed, targeted second round of non-party ESI collection and production while modifying the subpoena’s scope and shifting part of the incremental costs to the requesting parties to prevent undue burden and significant expense under Rule 45.


DeGeer v. Gillis, 755 F. Supp. 2d 909 (N.D. Ill. 2010)