Records management can be extremely complex. So can the preservation of evidence and responding to discovery requests.
In a case involving Fair Credit Report Act claims, Equifax objected to discovery requests for consumer dispute information. The Producing Party claimed that the requested information was not in a “readily accessible format, and that accessing this information would require an extraordinary amount of time and manpower.” Beseke v. Equifax Info. Servs., LLC, 2018 U.S. Dist. LEXIS 197920, at *3-4 (D. Minn. Oct. 18, 2018).
The database in question was named ACIS. The system was designed only for searches of consumer disputes based on a confirmation number or personal identifying one at a time. Responding to discovery requests would require a programmer to develop a search for consumer disputes with relevant codes. Equifax estimated it could potentially take weeks with searches or months manually to find responsive information. However, “wildcard” searches could be performed in the database. Beseke, at *6.
The Court held it would limit discovery produced from Equifax because of the accessibility issues of the data. Not reasonably accessible data aside, the Court stated the following on how the Producing Party maintained data:
“…the Court is also mindful that Equifax is not a small business unfamiliar with the intricacies of litigation, and it agrees with the conclusion of other district courts that permitting “a defendant whose business generates massive records to frustrate discovery by creating an inadequate filing system, and then claiming undue burden, would defeat the purposes of the discovery rules.”
Beseke, at *12-13, citing Kozlowski v. Sears, Roebuck & Co., 73 F.R.D. 73, 76 (D. Mass. 1976); accord Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 321 n.68 (S.D.N.Y. 2003).
The Court set the scope of discovery from January 1, 2014 to the date alleged in the case in 2017. The parties were also ordered to meet and confer to ensure the requests were narrowly tailored. The Producing Party was ordered to conduct wildcard searches within the open-text field of the forms within the database. While these searches could have false-positive results, that alone does not create an undue burden. The parties were ordered to confer on possible codes to include as search terms. Beseke, at *13-14.
Bow Tie Thoughts
Not every business operation is designed for litigation. That being said, if you are a company that is often in litigation with relevant information, look at options ensure that information is reasonably accessible. Courts frown on parties who purposely make relevant information “unduly burdensome.”
Magistrate Judge Katherine Menendez gets lots of props for her analysis of how wildcard searches work and her order on how to identify relevant information. The Court rightly issued orders to meet and confer, plus actionable guidance on the scope of discovery. Job well done for a complex problem.
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.