## Facts

- Teri Tucker obtained a $4 million employment-related judgment against her former employer.
- Tucker sued American International Group, Inc. and an affiliated insurer to collect that judgment under an employment practices liability policy issued to the employer.
- Marsh USA, Inc., the employer’s insurance broker, was not a party but was served with a Rule 45 subpoena seeking policy- and claim-related documents and emails.
- Marsh produced several hundred documents, performed additional searches, restored backup media, and made supplemental productions.
- Tucker asserted that relevant emails remained missing and sought an order compelling Marsh to allow her retained expert to conduct a direct forensic inspection of Marsh’s electronic systems, servers, and backup media.
- Marsh opposed the request as intrusive, expensive, and disproportionate for a non-party.

## Issues

1. Whether, under Federal Rules of Civil Procedure 26(b)(2)(C) and 45, a non-party broker could be compelled to submit to an independent forensic inspection of its electronic systems based on a party’s belief that additional emails likely existed.
2. Whether the likely benefit of the proposed forensic inspection outweighed the burden, expense, and intrusiveness imposed on a non-party, given prior productions and other available discovery sources.

## Decision

- The court denied Tucker’s motion to compel a forensic inspection of Marsh’s electronic systems.
- The court found the proposed inspection overbroad and premised on speculation rather than concrete evidence that unproduced, material emails still existed and were retrievable.
- The court credited Marsh’s substantial compliance efforts, including iterative searches and supplemental productions.
- The court held that the burden, cost, and intrusiveness of granting a third-party expert access to Marsh’s systems outweighed any likely incremental benefit, particularly where Tucker had obtained extensive discovery from other sources.

## Legal Principles

- Under Rule 26(b)(2)(C), a court must limit discovery that is unreasonably cumulative or duplicative, obtainable from a more convenient or less burdensome source, or whose burden or expense outweighs its likely benefit.
- Courts apply heightened scrutiny to discovery sought from non-parties and weigh proportionality and practical burden more heavily than in party discovery.
- A party seeking an independent forensic examination must show more than conjecture that responsive, material ESI exists and cannot be obtained through less intrusive means.
- Under Rule 45, courts must protect non-parties from significant expense and undue burden resulting from subpoena compliance, including by denying or narrowing disproportionate requests.

## Conclusion

The court refused to compel an independent forensic inspection of a non-party broker’s electronic systems because the request was speculative and overbroad, and the substantial burden and expense to the non-party outweighed any likely marginal benefit in light of prior searches and other available discovery.


Tucker v. Am. Int’l Grp., Inc., 281 F.R.D. 85 (D. Conn. 2012)