Can a producing party argue for cost-shifting to the defendant based on proportionality for the production of work-related emails on a plaintiff’s gmail account? Owens v. Clear Wireless LLC, 2014 U.S. Dist. LEXIS 26698, 4-6 (D. Minn. Mar. 3, 2014).
Short answer is no, because the emails are not inaccessible to the producing party.
The general rule in over the cost of producing discovery falls on the producing party. Owens, at *4, citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978). Discovery can be limited if “the burden or expense of the proposed discovery outweighs its likely benefit, considering the needs of the case, the amount in controversy, the parties’ resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues.” Owens, at *5, citing Fed. R. Civ. P. 26(b)(2)(C)(iii). Cost-shifting can be imposed if the data sought by the producing party is not reasonably accessible. Id, citing Zubulake v. UBS Warburg LLC, 216 F.R.D. 280, 283-84 (S.D.N.Y. 2003).
The Plaintiff’s emails in a gmail account were accessible by the Plaintiff. Data must be not reasonably accessible in order for any cost-shifting to be considered. Owens, at *6.
Bow Tie Thoughts
Email messages stored in a Cloud, whether it is Yahoo, Gmail, or some other service provider, are not “not reasonably accessible” to the producing party.
Computer forensic experts have determined multiple ways to capture cloud-based email. This can include having the email messages downloaded to a computer in Outlook, to applications that preserve the email from the cloud. Just because a lawyer needs to retain someone to perform the work, does not make the email “not reasonably accessible.”
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.