In Hurricane Katrina case, ESI was sought from Rimkus Consulting, who had inspected the subject property. Rimkus sought an order permitting them to produce the documents in paper format to prevent any “compromise in the authenticity or integrity of its engineering reports.” Magistrate Judge Wilkinson, sitting in the Eastern District of Louisiana, denied the motion, as the files were stored electronically in the ordinary course of business. “The court is cognizant that Rimkus is a non-party with no direct stake in this litigation and that non-parties in particular are entitled to protection from undue burden and expense. However, Rules 45(d)(1)(D) and 26(c)(5) impose a burden of proof upon Rimkus to show that the requested electronically stored information is unduly burdensome to produce.” In response to Rimkus’ assertion that the requesting party must show good cause to compel it to produce its electronic files, the court notes that “Rimkus must make an evidentiary showing that the data sought is not reasonably accessible because of undue burden or cost.” The statement of a lawyer in a memorandum, the court noted, “is not evidence.” The requesting party is “not required to show good cause to overcome Rimkus’s unsupported assertions.” See Auto Club Family Ins. Co. v. Ahner, No.05-5723, 2007 WL 2480322 (E.D.La. Aug. 29, 2007).
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