In a racial profiling case, the parties were in gridlock over custodians and date ranges to search of the electronically stored information. Barrera v. Boughton, 2010 U.S. Dist. LEXIS 103491 (D. Conn. 2010).
After a meet and confer, the Plaintiffs proposed searching 40 custodians, with 80 key words from January 2004 to present. Barrera at *8.
The Defendants objected, citing they had already produced over 900 email messages (none of which supported the Plaintiffs claims). Barrera at *9. Moreover, the Defendants’ estimated cost from their IT experts for conducting the Plaintiffs’ search would be over $60,000. Barrera at *9.
The Defendants proposed an initial search of three specific custodians from 2005 to 2007. The Defendants estimated the cost to search at $13,000 to $15,000, which they argued the Plaintiff should pay. Barrera at *9.
The Plaintiffs wanted, at a minimum, another three custodians initially searched and maintained their position that 40 custodians needed to be searched. Barrera at *9-10.
The Court found that the electronically stored information from the 40 custodians was not reasonably accessible because of cost. Barrera at *11-12, citing Fed. R. Civ. P. 26(b)(2)(B). The Court also found that the Plaintiff had not demonstrated good cause in justifying the production of the “not reasonably accessible” ESI. Barrera at *12.
The Court ordered the parties to conduct a phased discovery approach, where the three custodians would be searched with the Plaintiff’s search terms from 2004 to 2007. Barrera at *12. The Court also denied any cost-shifting. Barrera at *12.
Bow Tie Thoughts
However, the opinion is silent on whether the Defendants’ IT experts were in-house IT or a service provider. The opinion is also silent on how the data was being searched. What technology were they using to conduct the searches? How was the data stored? While collecting data over six years might involve back-up tapes, searching three custodians with 80 keywords might be less than $15,000.
A colleague estimated the following workflow and cost:
The average person would have 5GB of email/data a year. Provided there are three custodians and three years worth of data, there would be a total of 45GB. The total time to cull down, index and run key words in DT Search would likely be twelve hours. Assuming that the service provider was charging $200 an hour for the work (some service providers might be lower), the cost would be around $2,400.
Parties address e-Discovery challenges with the tools and resources they have on hand. While the in-house IT expert might have the skills of a certified BMW mechanic on a company’s network, you would not ask that mechanic to tune-up a 747. This is where the outside service provider is important, because they can use their tools, provide quality services and drive down costs.
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.