In FTC v. Boehringer Ingelheim Pharmaceuticals, No. 1:09-mc-00564-JMF (D.D.C. 10/16/12), U.S. Magistrate Judge John M. Facciola of the District of Columbia, well-known and respected for his opinions regarding e-discovery matters, held that responding to the FTC’s administrative subpoena would not be overly burdensome even though it involved the search of backup tapes.
While the court applied a test less favorable to producing parties than that found in Federal Rule of Civil Procedure 26(b)(2)(B) to measure what is “burdensome,” it had no real effect on the outcome of the case. What did influence the outcome was the FTC’s willingness to allow the defendant to focus on only a handful of tapes, and the court’s insistence that the FTC and the defendant seize upon that willingness to come to an informed agreement beneficial to both parties.
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