Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information.  Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years.  Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost.  Defendants also objected to the temporal scope of discovery.  Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

Plaintiffs moved to compel the production of electronically stored information (“ESI”) stored on defendants’ server, using their proposed parameters.  Defendants objected that the proposal was unduly burdensome and presented the declarations of two IT experts opining that the cost of the proposed search (not including attorney review) would be approximately $60,000.  Accordingly, defendants proposed to significantly reduce the scope of the search, and to shift their costs.

The court’s analysis focused on Rule 26(b)(2)(B) which precludes the obligation to produce information shown to be “not reasonably accessible because of undue burden or cost.”  Upon such a showing, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C), the rule of proportionality.

The court found that defendants met their burden of showing the information requested was not reasonably accessible and that plaintiffs had not met their burden of showing good cause to compel production despite such a finding.  Further, the court was persuaded that a phased approach to discovery was appropriate.  Accordingly, the court ordered defendants to search the ESI of three custodians, using the search terms proposed by plaintiffs, for a reduced time period of approximately three years.

The court denied defendants’ request to shift the costs where the search “as modified” was not unduly burdensome or costly:

Cost-shifting is not to be "considered in every case involving the discovery of electronic data, which–in today’s world–includes virtually all cases…. The Supreme Court has instructed that ‘the presumption is that the responding party must bear the expense of complying with discovery requests….’ Any principled approach to electronic evidence must respect this presumption."  Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 317 (S.D.N.Y.2003).  Rather "cost-shifting should be considered only when electronic discovery imposes an ‘undue burden or expense’ on the responding party."  Id. at 318.  "The burden or expense of discovery is, in turn, ‘undue’ when it ‘outweighs its likely benefit, taking into account the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the litigation, and the importance of the proposed discovery in resolving the issues.’ "  Fed.R.Civ.P. 26(b)(2)(C).  Under the circumstances of this case and having considered all the relevant factors, Zubulake v. UBS Warburg LLC, 217 F.R.D. at 321-22, the discovery request, as modified, does not constitute an "undue burden or expense."

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