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Finding Emails “Not Reasonably Accessible” Court Shifts Burden to Show Good Cause and Orders Limited Searching Using Specific Terms

Posted in CASE SUMMARIES

Capitol Records, Inc. v. MP3tunes, LLC, 2009 WL 2568431 (S.D.N.Y. Aug. 13, 2009)

During the course of discovery in this copyright infringement case, several disputes arose related to the burdensome nature of the parties’ respective requests for production.  The court initially “urged the parties” to work cooperatively to develop agreed search terms to be utilized by MP3tunes in its search for responsive electronically stored information (“ESI”).  After an initial failure to agree (and MP3tunes unilateral decision to search for ESI using only one search term), the court again directed counsel to cooperate to agree on search terms for MP3tunes use.  Again, the parties failed to reach agreement and sought intervention by the court on a number of issues.

Upon the court’s intervention, MP3tunes argued that the plaintiffs’ (collectively “EMI Labels”) requests were overly burdensome because the necessary output of resources to search would be “crushing” and because of the burden created by the identification of potentially-privileged information.  MP3tunes also asserted that searching the ESI of proposed additional custodians would not lead to the discovery of relevant evidence.

In turn, EMI Labels defended their own alleged lack of diligence surrounding email production by explaining their inability to easily search for responsive emails because of system limitations.  Although EMI Labels initially represented that previous searching for ESI (in prior litigation) required imaging the hard drives of relevant custodians, it was later determined that EMI Labels could search the active email files of limited groups of users by combining the files into a “single file not exceeding twenty gigabytes…provided they had a ‘fair bit of time.’”  EMI Labels also resisted additional searching on the grounds that they had already conducted a search for relevant ESI, albeit a manual one.

Because MP3tunes’ representations regarding its alleged burden were determined to have been “overblown,” it was ordered to run all of the searches requested by EMI Labels on all of the identified custodians.  Recognizing the MP3tunes’ legitimate concerns regarding privilege, though, the court determined that no parties would be required to record any privileged documents created after the relevant action was filed on their respective privilege logs.  The court also noted that MP3tunes might consider entering into a clawback agreement in the face of ongoing concerns regarding the need to conduct a privilege review.

The court then turned to EMI Labels’ representations that the discovery sought was unduly burdensome and specifically laid out the language of Fed. R. Civ. P. 26(b)(2)(B), which allows a litigant to avoid the obligation to produce information which is determined to be “not reasonably accessible” because of undue burden or cost.

Having established the relevant rule, the court next discussed a 2007 case from the District of Massachusetts in which a party avoided the need to retrieve and produce data determined to be not reasonably accessible despite the court’s “dismay that the party opposing discovery…had organized its files in a manner which seemed to serve no purpose other than ‘to discourage audits and the types of inquiries’ that the requesting party had made…”  W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007).  The court noted the similarity to the present case in which “EMI Labels which employ approximately 120 people in the global infrastructure services field and ‘probably [has] [two] terabytes’ of data on their servers, host[s] no ediscovery software on their servers and apparently are unable to conduct centralized email searches of groups of users without downloading them to a separate file and relying on the services of an outside vendor.”

The court then stated:

The day undoubtedly will come when burden arguments based on a large organization’s lack of internal ediscovery software will be received about as well as the contention that a party should be spared from retrieving paper documents because it had filed them sequentially, but in no apparent groupings, in an effort to avoid the added expense of file folders or indices.  Nonetheless, at this stage in the development of ediscovery case law, the Court cannot say that the EMI Labels’ failure to acquire such software and to configure its systems to permit centralized email searches means that its burdensomeness arguments should be disregarded.  I therefore conclude that the EMI Labels’ email files that MP3tunes seeks to search are not reasonably accessible within the meaning of Rule 26(b)(2)(B).

The burden thus shifts to MP3tunes to establish good cause for the additional email discovery it seeks.  Even if that showing is made, the Court has the discretion to impose conditions on any discovery it orders.  Fed.R.Civ.P. 26(b)(2)(B).

Thereafter, the court specifically addressed several of MP3tunes requests and ordered limited searching for emails containing specific search terms and for additional cooperation between the parties to identify 15 custodians for additional searching.

  • J Reed

    Seems to me the Judge might be tempted to allow MP3′s forensics/ediscovery staff or experts to come in and do some sampling. EMI seems to be really exposed here. It will be interesting to see this develop.