How Undue Burden Can Reach Out and Touch a Requesting Party

In General Steel Domestic Sales, LLC v. Chumley, the Requesting Party sought production of 463,000 recordings of sales phone calls.  And like one of the old long distance commercials of the 1980s, the Requesting Party was left crying at the end. General Steel Domestic Sales, LLC v. Chumley, 2011 U.S. Dist. LEXIS 63803, 1-7 (D. Colo. June 15, 2011).

The Defendants requested all sales call recordings from the beginning of 2009 to support their counterclaim for commercial disparagement.  General Steel Domestic Sales, LLC, at *3-4.

The Defendants only identified two persons who received the alleged commercially disparaging statements and did not state any damages from the alleged conduct. Id.

The call data amounted to 1,551,652 files totaling 300 gigabytes. General Steel Domestic Sales, LLC, at *4. The Plaintiff’s director of information technology estimated the data was more than 463,000 recorded calls.  Id.

Making life a litigation support challenge, all of the calls were intermixed, including sales, attorney-client and other phone voice messages. Id.

The Plaintiff did not have any software to enable it to search the 463,000 calls to find the sales calls that could be responsive to the discovery request, because the call system was a custom software purchase.  The only way to search the recordings was the “hard way”: listen to each one. Id.

Based on the evidence before it, the Court determined the following:

Listening to the 463,000 calls would take approximately 7,716 hours, assuming each message was one minute long.

One person listening to each message for 40 hours a week would take 193 weeks to review (or 4 years).

Assuming the person doing call review would be paid the Colorado minimum wage of $7.36 an hour, the review would cost $56,000.00.

General Steel Domestic Sales, LLC, at *6-7.

The Court found the Plaintiffs demonstrated undue burden and denied the Defendant’s request to produce the call recordings, based on the technology limitations in searching the calls, cost to review and the fact attorney-client communications were inter-mixed with the sales calls. General Steel Domestic Sales, LLC, at *7.

Bow Tie Thoughts: Review Voicemail in Discovery?  You Will. 

e-Discovery won’t drift away.

There is more to electronic discovery than email.  Voicemail, social media and text messages all might be relevant to a lawsuit.  However, some of this electronically stored information might not be reasonably accessible because of undue burden or cost.  As seen before, Courts want specifics in understanding why ESI is too costly to produce. In this case, the Plaintiff demonstrated the burden of production.

Technology to review electronically stored information will continue to improve to search the different forms of electronically stored information.  There are several companies that conduct voicemail review, such as Nexidia. While searching this voicemail might have been unduly burdensome in the present case today, it might not be in the future.

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 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.