Production of Electronic Materials Ordered without Cost-shifting Despite Claims of Undue Burden

Super Film of America, Inc. v. UCB Films, Inc., 219 F.R.D. 649 (D.Kan. 2004)

Defendant sought discovery of electronic versions of e-mail, documents, databases and spreadsheets falling within the scope of Fed.R.Civ.P. 26 or defendant’s document requests. Plaintiff had made available to SFA non-archived electronic versions of e-mail, documents and spreadsheets, and stated that it had attempted to provide electronic copies of the documents requested within its “knowledge or expertise” of how to retrieve such documents from the company’s two computers. It argued that it did not have the expertise to recover any further electronic documents, and the court’s order requiring such production would be unduly burdensome.

As an alternative to a court order compelling production, plaintiff proposed to make its two computers available to defendant’s technicians to inspect and make copies of any responsive electronic files or documents. Defendant rejected the offer as unreasonable because it would shift the burden and expense of discovery of electronic documents to defendant and would limit its ability to discover documents and files located on other computers that were accessed by plaintiff computers and that may contain relevant and responsive data.

The court sided with the defendant:

The court finds SFA’s conclusory contention that it does not have the expertise to retrieve such electronic data to be inadequate. Further, the court cannot relieve a party of its discovery obligations based simply on that party’s unsupported assertion that such obligations are unduly burdensome. As the court in Black & Veatch Int’l. Co. v. Foster Wheeler Energy Co. explained, the party opposing electronic discovery on the grounds of undue burden must “provide sufficient detail and explanation about the nature of the burden in terms of time, money and procedure which would be required to produce the requested documents.” SFA has not made this requisite showing. Beyond conclusory statements, no information has been provided by plaintiff to support its contention that compliance with defendant’s relevant discovery requests would be unduly burdensome. The court must overrule plaintiff’s objections. Furthermore, the court agrees with the defendant that allowing SFA to satisfy its electronic discovery obligations by simply turning over its two computers to UCB for inspection would unfairly shift the burden and expense of discovery to UCB and could potentially result in relevant and otherwise discoverable information being shielded from UCB.

The court, therefore, finds that SFA must produce electronic versions of e- mail, documents, databases and spreadsheets requested by UCB that fall within the scope of Fed.R.Civ.P. 26. SFA shall produce to UCB the requested electronic information within thirty (30) days of the date of this Order.

219 F.R.D. at 657.

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