Archive: November 29, 2007

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Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”

Plaintiffs Fail to Establish that Email in LotusNotes Format was “Not Reasonably Accessible Because of Undue Burden or Cost”

Parkdale Am., LLC v. Travelers Cas. and Sur. Co. of Am., Inc., 2007 WL 4165247 (W.D.N.C. Nov. 19, 2007)

In this case, Carolina corporations that manufacture and sell cotton yarn sought a declaratory judgment that, pursuant to an insurance contract, the defendant was obligated to defend and indemnify plaintiffs concerning claims in ten underlying antitrust lawsuits.  Plaintiffs also asserted state claims for breach of contract, bad faith denial of insurance claims, and unfair and deceptive trade practices.  The court in this opinion resolves a number of discovery disputes, one of which related to the production of email by plaintiffs.

Plaintiffs had raised an objection in their briefs to producing unidentified but admittedly non-privileged emails on the grounds of undue burden and expense ($20,000 to convert the emails into a searchable format).  However, at the hearing the parties’ counsel explained to the court that those emails were a key player’s emails which were subsequently produced at a lesser (and shared) cost.  When defense counsel argued that there was “very little useful information in those emails,” plaintiff’s counsel renewed plaintiffs’ objection as to other emails on the grounds of relevance and the burden and cost of searching them for privileged information.

The court cited Fed. R. Civ. P. 26(b)(2)(B) and 26(b)(2)(C), and found that the disputed discovery requests sought evidence that was relevant, and in some cases, “pivotal” to the issues in the case.  It stated: “In other words, absent a valid privilege or an undue burden or expense in production sufficient to override the Defendant’s right to conduct otherwise reasonable discovery, the Plaintiffs must respond fully to those discovery requests.”

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