Court Finds Data “Not Reasonably Accessible,” Denies Motion to Compel

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010)

In this employment discrimination case, the court found the electronically stored information (“ESI”) requested by the plaintiffs “not reasonably accessible because of the undue burden and cost” and that plaintiffs had failed to show good cause to compel production of the ESI and denied plaintiffs’ motion to compel.

Plaintiffs filed a motion to compel defendants’ production of “all email communications and calendar entries describing, relating or referring to plaintiff Vicky Rodriquez, both inbound and outbound from defendant GDB’s messaging system servers” for the years 2007, 2008, and 2009.  Moreover, plaintiffs sought to compel such production “in native format with its original metadata…”  Defendants objected and indicated that plaintiffs’ request was likely to produce “hundreds if not thousands of documents which will include irrelevant, confidential, and potentially privileged information.”

Prior to ruling, the court ordered additional briefing on the issue.  The parties’ submissions included a report from a consulting service indicating an approximate cost of $35,000 to retrieve the requested ESI.  Defendants also indicated the need to perform a privilege and confidentiality review of the ESI prior to production.  Accordingly, the court found the requested ESI “not reasonably accessible” reasoning that the proposed cost was “too high of a cost for the production of the requested ESI in this type of action.”  Moreover, the court indicated its concern over the increased cost that would result from the need to review the documents prior to production stating, “the volume of such information along with the form in which the information is stored makes privilege determinations more difficult and, correspondingly, more expensive and time consuming.”

The court continued its analysis, however, noting that “under FRCP 26(b)(2)(B), the party requesting the information that is not reasonably accessible can still acquire the information if the requesting party shows good cause.”  Attempting to show good cause, the plaintiffs indicated they expected to find “communications showing discriminatory animus such as derogatory and demeaning references, exclusion from meetings, communications and work activities, and general disregard for plaintiff Rodriguez’s abilities.”  Their “only basis” for this belief was “three articles which suggest that e-mail encourages senders to write unguarded, unwise, and often inappropriate comments.”

The court found no good cause to compel the production and stated “the court determines that Plaintiffs’ request is merely a fishing expedition to find out if there is any evidence that supports their claim.  Discovery is not meant to serve as a fishing expedition.  As such the court concludes this is not good cause.”

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