The New Jersey Appellate Division was confronted with the issue of whether the general policies recognized by the Court Rules that support broad discovery between parties to the litigation necessarily apply with an equal voice to discovery demanded from non-parties. Here, an anaerobic biodigester facility in Trenton filed suit against a company it contracted with to supply organic waste for processing. The defendant waste-supply company served discovery requests on a non-party engineering firm. That non-party asserted compliance would be unduly burdensome, and it also sought to shift the costs of compliance to the defendant waste-supply company. The Appellate Division ruled that when a party seeks discovery from a non-party, the trial court must consider the relative simplicity in which the information may be supplied by a party and the availability of less burdensome means to obtain the same information. The Court further explained that this is particularly important when the electronically stored information is voluminous, time-consuming, and costly to prepare for production and might implicate privilege and confidentiality issues. Here, the Appellate Division reversed the lower court order demanding discovery from the non-party because some information would be forthcoming from parties to the litigation, and a clawback provision did not lessen the initial burden on the non-party to produce a copious amount of digital discovery.
