Rule 45 and Producing ESI More Than 100 Miles Away

Federal Rule of Civil Procedure 45(c)(2)(A) specifies that a subpoena on a non-party may only compel the, "production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person." Earlier this year, in Mackey v. IDT Energy, Inc., No. 19 Misc. 29 (PAE), 2019 U.S. Dist. LEXIS 77101 (S.D.N.Y. May 7, 2019), Judge Paul Engelmayer issued a decision granting in part and denying in part a motion to quash a subpoena. The motion was filed by Fluent, LLC which received a subpoena from the Plaintiff, in a class action suit filed in the Northern District of Illinois relating to the violation of federal law for the making of unsolicited calls with an automatic dialing system. A motion for class certification had not been filed at the time of the decision. The subpoena sought text messages; telephone records; data on website usage; and all communications regarding the litigation. The subpoena called for the production of documents in Boston and Fluent was based in New York.

Judge Engelmayer rejected Fluent's contention that the subpoena was invalid because it requested production more than 100 miles away. "Federal courts have universally upheld, as consistent with the Rule, this production mode—in which the subpoenaed entity, at all times acting within 100 miles of its office, uploads documents for retrieval by counsel for the party who issued the subpoena." Id. at *10. He noted Fluent's failure to cite any cases holding that FTP transfer of ESI would violate the 100 mile rule, and referenced several authorities saying it would not.

The request for all communications regarding the litigation between Fluent and any third party was quashed as being "completely untailored", and "dominantly to seek irrelevant documents". Id. at *16. It also quashed requests for documents that were not relevant to the Plaintiff's claims and were only for the class action, on account of undue burden.