Electronic Discovery Law

Posted at 9:00 AM on December 15, 2004 by K&L Gates

Plaintiffs Allowed Discovery of Archived Email Only if Willing to Share Expense

Byers v. Ill. State Police, 2002 WL 1264004, 53 Fed.R.Serv.3d 740 (N.D. Ill. 2002)

Plaintiffs in sex discrimination suit moved to compel defendants to produce email stored on backup tapes created daily over an eight-year period. Based on the cost of the proposed search and plaintiffs' failure to establish that the search would likely uncover relevant information, the court concluded that plaintiffs were entitled to the archived emails only if they were willing to pay for part of the cost of production. 2002 WL 1264004, at *12.

The court thus granted plaintiffs' motion to the extent they would bear the cost of licensing the email program no longer in use by the defendant but required to read much of the requested email. The defendant would continue to bear the expense of its review for responsive documents and for privileged or confidential material. Id. It was expected that requiring plaintiffs to share in the cost would provide them an incentive to narrow their requests.

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