Keller sued Cox Radio for sexual discrimination after she was allegedly constructively discharged in 2007. Keller issued a subpoena, dated February 5, 2009, to take the deposition of Patricia Tomallo, a former employee of Cox Radio, and a non-party to this suit. The deposition was scheduled for February 10, 2009. Defendant learned of the deposition on February 9, 2009, and sought to quash the deposition on Tomallo's behalf. In support of its motion, defendant asserted that Tomallo has no knowledge of facts related to plaintiff's cause of action in this cause. Although defendant requested that the deposition be delayed until after the Court ruled on its motion, Tomallo was deposed the following day as scheduled.

During the deposition, Tomallo testified regarding an EEOC claim she filed while employed by the defendant based on events that occurred in the summer and fall of 2004. Additionally, Tomallo also revealed that she and Keller had been communicating by email and text messaging regarding Keller's claim against the defendant. In fact, Tomallo produced a copy of one email, dated two days before Tomallo was deposed, that referred to the defendant as “the evil forces at Cox,” and portrayed, what could be interpreted as, a solidarity between Tomallo and Keller.

As a result of Tomallo's deposition testimony, plaintiff then issued a second subpoena duces tecum, requesting that Tomallo produce her “entire EEOC claim file material.” Tomallo was advised by defendant, however, that if she produced the file, she would be in breach of the parties' confidentiality agreement. Cox Radio objects to production of Tomallo's EEOC file (docket no. 22) but did not file a separate motion to quash. However, based “on the testimony of Tomallo and Plaintiff,” defendant determined that Tomallo might have relevant information to offer and served her with a subpoena duces tecum of its own, requesting that Tomallo produce her cell phone and personal computer to the offices of defendant's attorneys so “a mirror image could be made and inspected.” (Docket no. 20). In support thereof, defendant stated it believed that there had been electronic communications between Tomallo and Keller since at least early January 2007, and that such communications “[would] contain statements made by Plaintiff about her claim, likely including admissions against Plaintiff's interest and defamatory statement about other employees of Defendant.” Tomallo filed a motion to quash, arguing that her computer contained privileged information regarding Tomallo, her husband and her child.[2] The motion also seeks to quash the subpoena of plaintiff for the EEOC file.

*2 Under Fed.R.Civ.P. 26(c), a nonparty subpoenaed for testimony and production of documents may move for a protective order including an order that discovery not be had. A nonparty also may merely object to the requests for production of documents. Fed.r.civ.p. 45(c)(2)(b). By merely objecting, such discovery is foreclosed except pursuant to an order of the court. Id. While the burdens may vary somewhat depending on which rule or procedure is invoked, the substantive considerations for denying a party discovery are generally the same and may be gleaned from Rule 26(b) and (c). Truswal Sys. Corp. v. Hydro–Air Eng'g, Inc., 813 F.2d 1207, 1210–11 (Fed. Cir. 1987); American Standard, Inc. v. Pfizer Inc., 828 F.2d 734, 739–42 (Fed. Cir. 1987).

Discovery may not be had regarding a matter which is not “relevant to the subject matter involved in the action.” FED.R.CIV.P. 26(b)(1). Under Rule 26, discoverable material is not limited to admissible evidence, but includes anything “reasonably calculated to lead to the discovery of admissible evidence.” Id.; Coughlin v. Lee, 946 F.2d 1152, 1158 (5th Cir. 1991). Following this guidance, courts construe Rule 26 broadly, and generally hold that the scope of discovery encompasses any matter that is “relevant,” or “any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case.” Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978); see also FED.R.CIV.P.26(b)(1); Dunbar v. United States, 502 F.2d 506, 509–10 (5th Cir. 1974). Even if relevant, discovery is not permitted where no need is shown, or compliance would be unduly burdensome, or where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information. FED.R.CIV.P. 26(b),(c); American Standard, Inc., 828 F.2d at 739–42.

The Federal Rules of Civil Procedure unquestionably allow broad discovery; however, this right to discovery is still limited. Hickman v. Taylor, 329 U.S. 495, 507 (1947). When a nonparty is the subject of discovery, heightened restriction on such discovery is warranted to protect the nonparty from “harassment, inconvenience, or disclosure of confidential documents.” SeeBio–Vita, Ltd. v. Biopure Corp., 138 F.R.D. 13, 17 (D. Mass. 1991); Collins & Aikman Corp. v. J. P. Stevens & Co., Inc., 51 F.R.D. 219, 221 (D.S.C. 1971). Therefore, to obtain discovery from a nonparty, a party must establish that its need for discovery outweighs the nonparty's interest in nondisclosure. See Bio–Vita, Ltd., 138 F.R.D. at 17; Slater Steel, Inc. v. Vac–Air Alloys Corp., 107 F.R.D. 246, 248 (W.D. N.Y. 1985).

Although Cox Radio filed a motion to quash Tomallo's deposition, the deposition was taken before the Court ruled on defendant's motion. Accordingly, Cox Radio's motion to quash is DENIED AS MOOT. (Docket no. 14).

Defendant seeks to obtain Tomallo's hard drive and cell phone text messages because defendant believes that Tomallo's electronic communications with Keller may contain statements made by plaintiff about her claim, “likely including admissions against Plaintiff's interest and defamatory statements about other employees of Defendant.” The Court notes that Tomallo voluntarily produced an email from plaintiff dated February 9, 2009, and stated that she would produce copies of any information on her personal hard drive which related in any way to plaintiff and/or her lawsuit. However, this apparently was insufficient for Cox Radio which insists that forensic duplication of Tomallo's entire hard drive is required to ensure that information deleted from Tomallo's hard drive is also produced.

*3 Cox Radio appears to take the position that Tomallo's deposition testimony and EEOC file are irrelevant to this suit because Tomallo had no first hand knowledge and the file “contains no information relating in any manner to the terms and conditions of Plaintiff's employment and/or separation from employment,” but that Tomallo's electronic communications with Keller are somehow relevant to this suit and should be produced. In support thereof, Cox Radio argues that these electronic communications may contain statements made by the plaintiff about her claim, “likely including admissions against Plaintiff's interest and defamatory statements about other employees of Defendant.” However, in response to Tomallo's motion to quash, the defendant previously argued that:

(Docket no. 22, pg. 5). The same argument could be made in response to defendant's electronic data subpoena since either Tomallo has first hand relevant knowledge of the case or she does not.[3]

Further, as the party seeking to obtain discovery from a nonparty, defendant bears the burden of establishing its need for discovery outweighs the nonparty's interest in nondisclosures. See Bio–Vita, Ltd., 138 F.R.D. at 17; Slater Steel, Inc., 107 F.R.D. at 248. Here, defendant has not established that the electronic communications between Tomallo and the plaintiff could not also be obtained from the plaintiff, who is a party to this suit, rather than from Tomallo, a nonparty. See id. Moreover, before a court will subject a party to the forensic imaging of the entire physical hard drive of his or her computer system, the requesting party should show that the producing party's conduct makes the order to compel mirror imaging necessary. This generally requires proof of willful concealment or destruction of potentially relevant information stored in an electronic medium and retrievable in viewable form. See John B. v. Gotz, 531 F.3d 448, 460 (6th Cir. 2008). Although defendant believes that there have been electronic communications between Tomallo and Keller since at least early January 2007, and argues that forensic duplication of Tomallo's entire hard drive is required to ensure that information deleted from Tomallo's hard drive is also produced, defendant has not alleged or produced any evidence that Tomallo is willfully concealing or destroying potentially relevant documents. As a result, it appears that the discovery request is unduly burdensome to Tomallo, a nonparty, and needlessly so. FED.R.CIV.P. 26(b),(c); American Standard, Inc., 828 F.2d at 739–42.

Accordingly, it is ORDERED Cox Radio's motion to quash Tomallo's deposition is DENIED AS MOOT.

Further, it is ORDERED that Tomallo's motion to quash the electronic data subpoena is GRANTED.

Finally, it is ORDERED that Tomallo's motion to quash the EEOC subpoena, which motion is joined by Cox Radio, and to which motion plaintiff filed no response, is GRANTED.