Proportionality and costs are not a great argument when you are complaining about your own databases.
Webb v. Ethicon Endo-Surgery, Inc., is a product liability case over a surgical stapler that misfired during a surgery, resulting in complications to the Plaintiff’s recovery. Webb v. Ethicon Endo-Surgery, Inc., 2015 U.S. Dist. LEXIS 8275, 2-3 (D. Minn. Jan. 26, 2015). The Magistrate Judge attempted surgery on the scope of discovery, resulting in the Defendant arguing the scope was too broad, and the Plaintiff arguing it was too narrow, over three specific discovery requests. The District Court upheld the Magistrate Judge’s order on the scope of discovery.
The Defendant offered a declaration from their risk manager to support their argument to narrow discovery based on proportionality. The Defendant argued that they had made the line of medical staplers for 18 years and the records were stored in multiple databases. Webb, at *14-15.
The Defendant further argued that it would cost $62,400 to search the multiple databases, which was disproportional to the Plaintiff’s damages “in excess” of $50,000. Webb, at *16. This argument failed.
The Court cited that the producing party has the burden of complying with discovery requests and “a corporation [that] has an unwieldy record keeping system which requires it to incur heavy expenditures of time and effort to produce requested documents is an insufficient reason to prevent disclosure of otherwise discoverable information.” Webb, at *16-17, quoting Wagner v. Dryvit Sys., Inc., 208 F.R.D. 606, 611 (D. Neb. 2001) and citing Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 358, 98 S. Ct. 2380, 57 L. Ed. 2d 253 (1978).
The Court held that the Magistrate Judge properly determined the scope of discovery in evaluating the expense, burden, and likely benefit of the information sought for the subject discovery requests. Webb, at *17.
Bow Tie Thoughts
Searching databases is expensive. Many judges do not care for arguments from a producing party that searching multiple, or even dissimilar, databases make the cost of relevant discovery prohibitively expensive. This is like arguing a party should be protected from its own self-inflicted wound on how they manage different databases.
Technology is constantly improving, thus methods of storing data change over time. If a company maintains electronically stored information going back potentially decades, they should be prepared have the ability to search it in litigation in a cost effective manner.
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.