Failing to Show Undue Burden in Cost Shifting for Native File Production

In Sundown Energy, L.P. v. Haller, the Defendant (Requesting Party) brought a motion to compel the Producing Party to produce electronically stored information in native file format.  The Defendant had specified “native format” as the form of production in their request for production.  Sundown Energy, L.P. v. Haller, 2011 U.S. Dist. LEXIS 124145, at *9-10 (E.D. La. Oct. 26, 2011).

The Court granted the motion to compel.  The Producing Party requested the Defendants bear the production costs.  Sundown Energy, L.P. at *9.

The Court cited the following from Zubulake:

[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format (a distinction that corresponds closely to the expense of production)…Whether electronic data is accessible or inaccessible turns largely on the media on which it is stored.

Sundown Energy, L.P. at *9-10, citing Zubulake v. UBS Warburg, L.L.C., 217 F.R.D. 309, 318 (S.D.N.Y. 2003).

The Court quickly held the Producing Party failed to show the ESI was inaccessible, because their sole undue burden argument was the production would be “costly.”  Sundown Energy, L.P. at *10.  The Court stated there was no evidence of how the ESI was stored or how it was not reasonably accessible.  As such, the request for cost shifting was denied.  Id.

Bow Tie Thoughts

I have met attorneys who categorically state that e-Discovery is “expensive” and thus unduly burdensome.  This belief is often not substantiated with details of how a client’s data is maintained, types of files at issue, strategies for collection, how the data would be processed into a reasonably useable form, expected time for reviewing electronically stored information and costs for each step in production.  These are just a few of the possible elements to show undue burden and by no means a complete list.

Demonstrating ESI is not reasonably accessible requires at a minimum affidavits explaining the undue burden and the cost to translate not reasonably accessible ESI into a reasonably useable form.  A Court needs specific facts to make an undue burden determination, beyond a lawyer simply saying e-Discovery is “expensive.”