Archive: April 24, 2008

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Court Rejects Cost Shifting Since Moving Party Failed to Meet and Confer in Good Faith; Cost Estimate and Conclusory Characterizations of ESI as “Inaccessible” Insufficient Under Rule 26(b)(2)

Court Rejects Cost Shifting Since Moving Party Failed to Meet and Confer in Good Faith; Cost Estimate and Conclusory Characterizations of ESI as “Inaccessible” Insufficient Under Rule 26(b)(2)

Mikron Ind., Inc. v. Hurd Windows & Doors, Inc., 2008 WL 1805727 (W.D. Wash. Apr. 21, 2008)

In this decision, District Judge Robert S. Lasnik denied defendants’ motion for a protective order which asked the court to shift the costs of producing ESI to the plaintiff.  Relying on Fed. R. Civ. P. 26(b)(2), defendants argued that searching through their ESI would generate substantial costs and yield cumulative results.

Finding that defendants failed to discharge their meet and confer obligation in good faith, as required by Fed. R. Civ. P. 26(c), the court denied the motion on that basis.  The court then went on to consider the merits of the motion.  It found that defendants had also failed to demonstrate that plaintiff’s discovery requests were unduly burdensome and/or cumulative, or that the requested ESI was “not reasonably accessible because of undue burden or cost.”  The court explained:

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