Defendant Required to Produce Email at Its Own Expense

In re Brand Name Prescription Drugs Antitrust Litig., 1995 WL 360526 (N.D. Ill. June 15, 1995)

Plaintiffs moved to compel production of email stored on defendant’s backup tapes. Claiming to have 30 million pages of email data stored on the subject tapes, the defendant resisted the motion on burdensomeness and other grounds. Defendant estimated that it would cost $50,000 to $70,000 to compile, format, search and retrieve responsive email. 1995 WL 360526, at *1.

The court stated that the mere fact that the production of computerized data will result in a substantial expense is not a sufficient justification for imposing the costs of production on the requesting party. It observed that, besides considering whether the expense is inordinate and excessive, a court may also consider whether the relative expense and burden in obtaining the data would be greater to the requesting party as compared to the responding party, and whether the responding party will benefit to some degree in producing the data in question. It opined:

In the context of the retrieval and production of computer-stored information issues of “undue burden” become complicated. On the one hand, it seems unfair to force a party to bear the lofty expense attendant to creating a special computer program for extracting data responsive to a discovery request. On the other hand, if a party chooses an electronic storage method, the necessity for a retrieval program or method is an ordinary and foreseeable risk.

Id. at *2. The court agreed with the responding party that the estimated retrieval cost of $50,000 to $70,000 was expensive, but concluded that it was not a burden that the class plaintiffs should bear, particularly where “‘the costliness of the discovery procedure involved is . . . a product of the defendant’s record-keeping scheme over which the [plaintiffs have] no control.'” Id. (citations omitted). It further noted that the defendant had essentially admitted that part of the burden attendant to searching its files resulted from the limitations of the software the defendant was using. Declining to shift the cost to plaintiffs, the court did require plaintiffs to pay $.21 per page for email that the plaintiffs select for copying. The court further required, “for the purpose of containing costs,” that the parties consult with each other and agree upon meaningful limitations on the scope of any email search. Id. at *3.

Copyright © 2022, K&L Gates LLP. All Rights Reserved.