Applying Proportionality, Court Denies Motion to Compel Additional Search for ESI, Reminds Parties of Other Discovery Tools

United States v. Univ. Nebraska at Kearney, No. 4:11CV3209, 2014 WL 4215381 (D. Neb. Aug. 25, 2014)

In this housing discrimination case, the parties disagreed regarding the proper scope of discovery and plaintiff’s proposed search terms.  Plaintiff sought the production of ESI related to requests for accommodation of a disability in every context (e.g., housing, academics, employment, etc.) while defendants sought to limit production to the “housing” or “residential” contexts.  The court found that plaintiff’s request was overly broad on its face and that the additional costs required by the requested searching would “far outweigh” anything that could be gained.  Moreover, the court agreed with defendants that even with a clawback order, review of potentially responsive documents would be required to protect students’ privacy interests.  Finally, in response to claims that defendants’ proposed search would miss responsive ESI, the court reasoned that “[s]earching for ESI is only one discovery tool,” and suggested that “[s]tandard document production requests, interrogatories, and depositions should suffice – and with far less cost and delay.”

Plaintiff alleged that defendants had “prohibited or hindered students from living with emotional assistance animals in university housing.”  Accordingly defendants produced those documents having to do with requests for reasonable accommodation in university housing.  Plaintiff was unsatisfied, however, and sought information related to requests for accommodation in all contexts.  Per their stipulation and order regarding the treatment of ESI, the parties attempted to negotiate appropriate search terms, but could not agree.

After negotiation, the dueling proposals stood as follows: plaintiff’s proposed search terms would yield 51,131 potentially responsive documents which would cost $155,574 to review while defendants’ proposed search would yield 10,997 documents.  When plaintiff suggested that the ESI could be produced without review, defendants objected that to do so would violate federal law by revealing students’ personal identifying information.  Plaintiff moved to compel. 

Before addressing  the motion, “[t]he court ordered the parties to provide answers to specific questions regarding their efforts at resolving  ESI as part of any motion to compel filed.”  Regarding plaintiff’s response, the court noted that it did not “include information comparing the cost of its proposed document retrieval method and amount at issue in the case, any cost/benefit analysis of the discovery methods proposed, or a statement of who should bear those costs.”

Upon taking up the motion, the court was “not convinced” that the scope of discovery should be expanded to include all requests for accommodation and found that plaintiff’s request was “on its face, overly broad, not ‘reasonably calculated to lead to the discovery of admissible evidence,’ …  and inconsistent with the goals” of Rule 1.  The court went on to reason that even if it assumed that the requested discovery may be relevant, it must weigh the burden versus the benefit pursuant to Federal Rule 26(b)(2)(C)(iii). Reasoning in part that defendants had already produced all documents relevant to requests for accommodation in housing, that the plaintiff had not established that evidence of a broader discriminatory attitude or practice may exist, and that defendants had already expended more than $100,000 to respond, the court further found that the additional costs of the proposed discovery would “far outweigh” what could be gained.

Turning briefly to plaintiff’s suggestion that the documents be produced without review subject to a clawback agreement, the court agreed with defendants that to do so would adversely impact the privacy interests of all who had requested accommodation and, again citing the burden of the proposed review, once again declined to compel production.

Finally, the court responded to plaintiff’s assertion that its broad proposed search was necessary because without it, “the ESI search w[ould] not reveal a complete set of documents”:

Searching for ESI is only one discovery tool. It should not be deemed a replacement for interrogatories, production requests, requests for admissions and depositions, and it should not be ordered solely as a method to confirm the opposing party’s discovery is complete. For example, the government proposes search terms such as “document* w/25 policy.” The broadly used words “document” and “policy” will no doubt retrieve documents the government wants to see, along with thousands of documents that have no bearing on this case. And to what end? Through other discovery means, the government has already received copies of UNK’s policies for the claims at issue. See Filing No. 104, at CM/ECF pp. 19–10).

The court concluded:

Having considered the allegations and docket filings, and absent any evidence that the defendants hid or destroyed discovery and cannot be trusted to comply with written discovery requests, the court is convinced ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks. Standard document production requests, interrogatories, and depositions should suffice—and with far less cost and delay.

Defendant’s motion to compel was denied.

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