Always Explain "Why" to the Judge

A Plaintiff brought a motion to compel “access to electronic records,” claiming the Defendants had “withheld electronically stored information” and had not produced a “chronological e-mail history of any kind.” Murray v. Coleman, 2012 U.S. Dist. LEXIS 130219, 1-3 (W.D.N.Y. Sept. 12, 2012).

The Defense attorney claimed that the Defendant had produced “copies (free of charge) of the documents sought,” thus rendering the Plaintiff’s motion “moot.” Murray, at *2.

The Plaintiff countered that, “virtually no electronic records [were] included” in the discovery production.  Id. Moreover, the Plaintiff claimed there was never a “systemic search” of the Defendant’s databases and that he “has not received any chronological electronic records related specifically to a single Defendant and/or electronic communications concerning extensive claims” in the case. Murray, at *2-3.

Magistrate Judge Jonathan W. Feldman stated the Defense attorney’s “terse response” made it difficult to determine whether the Defendants had produced all the responsive email to the Plaintiff’s request for production. Murray, at *3. Moreover, the Court noted that the Defense Declaration had “not provide any details regarding how and where electronically stored information (“ESI”) is held, what efforts were made to preserve relevant ESI, and the method used by defendants to locate, search and produce relevant ESI.” Murray, at *3.

The Court referred to the “inadequacy” of the Defense response to the motion to compel and thus construed the response effectively argued that the electronically stored information was not produced because it was not “reasonably accessible.”  Murray, at *3.

In situations where a party resists the production of ESI, Federal Rule of Civil Procedure Rule 26(b)(2)(B) requires that “the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost.”

Case law also requires responding parties to demonstrate how ESI is not reasonably accessible as follows:

[I]dentify, by category or type, the sources containing potentially responsive information that it is neither searching nor producing. The identification should, to the extent possible, provide enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.

Murray, at *3-4, citing Star Direct Telecom, Inc. v. Global Crossing Bandwidth, Inc., 272 F.R.D. 350, 358-59 (W.D.N.Y. 2011).

The Court ordered the Defendants to comply with Rule 26(b)(2)(B) by filing an affidavit by a person with direct knowledge of the Defendant’s document and email retention system stating:

 (1) The document/email retention policy used by DOCS currently and during the relevant time periods;

(2) The dates of emails “reasonably accessible” for production in this litigation;

(3) The back up or legacy system, if any, used by DOCS to preserve or archive emails that are no longer “reasonably accessible” and whether responsive documents or data may potentially be found on such back up or legacy systems;

(4) Whether accessing archived or back up emails would be unduly burdensome or costly and why; and

(5) The date when a litigation hold or document preservation notice was put in place by DOCS regarding this matter and either a copy of or a description of the preservation or litigation hold utilized by DOCS.

Murray, at *4-5.

Bow Tie Thoughts

I have met Federal and state court judges across the country with one unifying factor on ESI productions: they want to know what was done to find responsive electronically stored information. Gone are the days of lawyers merely telling a judge, “Your Honor, finding email is unduly burdensome and expensive.” Such statements need to be support with specific facts, not empty rhetoric.

Judges are heavily armed with a one word question when an attorney claims ESI is not reasonably accessible: Why?

Magistrate Judge Jonathan W. Feldman outlined excellent points that a party likely would have to answer in many cases. While cases obviously can vary, other possible factors to consider include:

Search methodology required to identify ESI;

Type of electronically stored information;

Technology required to render the ESI into a “reasonably accessible”;

Time required to performance the relevant work;

Cost estimate for process or translate the ESI into a reasonably useable form;

Review cost estimate

This is by no means an all-inclusive list. A person with eDiscovery knowledge can determine what is enough detail to enable a requesting party (and Court) to evaluate the burdens and costs of producing the discovery and the likelihood of finding responsive ESI under the facts of a given case.