Seger v. Ernest-Spencer Metals is the story of an industrial accident where the Plaintiff suffered serious bodily injury.
In the ensuing discovery battle, the Producing Party claimed the electronically stored information was from sources that were not reasonably accessible due to undue burden. Seger v. Ernest-Spencer Metals, 2010 U.S. Dist. LEXIS 12754, 22 (D. Neb. Jan. 26, 2010). Moreover, the Producing Party also claimed the discovery imposed undue burden for them to conduct the review to find the ESI responsive to the discovery request. Id.
The Requesting Party countered that the requested ESI was narrowly tailored and volunteered to pay “reasonable charges” for the collection of the electronically stored information. Seger, at *23. The Requesting Party even went so far to offer to hire a neutral expert to cull the data set. Id.
Defiantly Claiming Undue Burden
The Producing Party’s Director of Information Technology described the methodology to search and collect the ESI via affidavit to support the undue arguments:
Searches would be required on each person’s shared network drive and existing hard drive. Seger, at *24.
[I]t would take “78 to 117 man-hours” to respond to just one request. Id.
Accomplishing the task would be disruptive to personnel and operations. Id.
The Director of Information Technology could not estimate the resources required to complete the search because of its breadth. Id.
In a not very surprising argument, the Producing Party claimed the Requesting Party had to show good cause for the requested electronically stored information. Further, the Producing Party argued the cost burden for production shifted to the Requesting Party due to the burden of production. Seger, at *24.
The Requesting Party’s Excuse Me Moment
The Director of Information Technology testified in deposition how the Producing Party collected electronically stored information responsive to the discovery requests. Seger, at *24-25.
The deposition testimony outlined a shrinking universe of time and cost to collect the responsive electronically stored information for production. Seger, at *25.
The Director stated there were under 1,000 computers and five exchange servers at the relevant Producing Party’s location. Seger, at *25. Moreover, not all of the Producing Party’s employees had email accounts. Seger, at *25.
The Director explained that the collection time for responsive electronically stored information would depend on how much email was possessed by that specific user. Seger, at *25.
The Director of Information Technology based his time estimated on assumptions of the Producing Party’s average email. Seger, at *25. He did not have the actual numbers, but could have found the information. Id.
The Director of Information Technology estimated six to nine hours to collect each user’s email because he did not “trust the margin of error in the software (estimating two to three hours as opposed to one to several minutes) and organizing the CD after copying the information (estimating one to two hours as opposed to minutes).” Seger, at *25. The time estimate also included processing time and indexing. Seger, at *26.
The Director also testified the Producing Party’s IT department had conducted email searches over 35 and 100 mailboxes without “undue burden” on the department. Seger, at *26.
Court’s Analysis on Undue Burden
The Court held the Producing Party failed to prove any undue burden from the discovery request. Seger, at *27-28.
The Producing Party’s arguments focused on general descriptions of collection methodology, not anything about the specific individuals subject to the discovery request. Seger, at *28. Nothing was stated if the specific individuals had email accounts or if they did, what was the size of their email mailbox. Id.
The Producing Party’s specific user information was necessary to make relevant estimates for production costs, opposed to mere speculation of the average email user. Seger, at *28.
The Court further found the undue burden time estimates were overstated because the Director of Information Technology included unnecessary quality control. Seger, at *28.
The Court ordered the Producing Party to supplement their responses to include the non-privileged electronically stored information to the specific discovery request at issue. Seger, at *28. Additionally, the Court required the Producing Party to submit an affidavit that described the production process. Seger, at *28-29.
Bow Tie Thoughts
Arguing Undue Burden
Judges want facts, not speculation, when it comes to undue burden. Merely standing in court and claiming e-Discovery is expensive will not be a winning argument. Parties must specifically prove the costs for collection; how long it will take to collect ESI from key players; the actual process for rendering the ESI in a reasonably usable form in a litigation support platform; time to perform the actual work; and any other facts showing undue burden.
Mustering these arguments will require someone with knowledge, perhaps a person most knowledgeable from the client’s IT department or an e-Discovery expert, or even both.
Collection challenges from multiple custodians can be avoided with proper collection methodologies. I am generally not a fan of companies performing their own collections. This could result in ESI not being collected correctly and client subject to cross-examination. It might also give a false appearance of the destruction of data, even if the ESI was collected correctly.
With that said, there are cases where self-collection by a client is appropriate. This could be where the client has very advanced technology and the client has the most knowledge to collect the data. There are also sophisticated clients that have staff specifically trained in collecting ESI with EnCase, FTK, Paraben, Pinpoint Labs, or one of the other fine products on the market, who can do defensible collections. These individuals need to also be able to endure a cross-examination in court on how they performed the collection in a defensible manner.
However, in cases where you have numerous employees and specific ESI to collect from secondary players, a tool that has self-executing collection technology is a cost saving measure.
These technologies are collection software that can fit on remote media, such as a thumb drive or external hard drive. A collection protocol is written by an expert that can perform a targeted collection based on keywords, dates, custodians or other limiting factors to avoid a total imaging of a hard drive. The custodians plug-in the removable media to a USB port, follow the instructions and disconnect the device when finished. The device is then sealed in an evidence bag, an affidavit filled out describing what was done and sent to the expert for processing, review and production.
Of course, there might be situations where a complete image is required for preservation purposes. Moreover, you might want the key players in a case to have their computers preserved by an expert instead of a self-executing collection. However, a targeted collection to avoid having to review irrelevant electronically stored information can save costs and avoid undue burden situations.
Josh Gilliland is a California attorney who focuses his practice on eDiscovery. Josh is the co-creator of The Legal Geeks, which has made the ABA Journal Top Blawg 100 Blawg from 2013 to 2016, the Web 100 from 2017 to 2018, and was nominated for Best Podcast for the 2015 Geekie Awards. Josh has presented at legal conferences and comic book conventions across the United States. He also ties a mean bow tie.