Court Finds Request Overly Broad and Unduly Burdensome and Denies Motion to Compel but Orders Search of Electronically Stored Information According

Kay Beer Distrib., Inc. v. Energy Brands, Inc., 2009 WL 1649592 (E.D. Wis. June 10, 2009)

Following the court’s award of partial summary judgment to defendant, the sole cause of action remaining was plaintiff’s claim for breach of an oral agreement. In support of that claim, plaintiff sought to compel the production of five DVDs containing the results of defendant’s search for potentially responsive electronically stored information ("ESI") referencing plaintiff, including emails. Because of the broad nature of defendant’s search, the DVDs contained some information that was privileged or otherwise non-discoverable. Defendant opposed the request as overly broad and unduly burdensome “given the narrow issues remaining in the case.” Moreover, defendant had previously produced responsive ESI, including ESI contained on the DVDs. The court denied plaintiff’s motion to compel. Having denied the motion, the court nonetheless recognized defendant’s obligation to “conduct reasonable searches” to respond to plaintiff’s discovery requests and ordered defendant to conduct additional searching of the ESI at issue as instructed by the court.

Despite defendant’s prior production of responsive ESI, plaintiff sought access to defendant’s DVDs for purposes of verifying production of all responsive information. As the court noted, “[i]n effect, [plaintiff] has demanded every email or ESI in which its name or some variation thereof appears.” Opposing plaintiff’s request, defendant argued that production of the DVDs would be unduly burdensome in light of the need to have its attorneys review the contents “to ensure that only nonprivileged and discoverable information was provided.” The cost of attorney time alone was estimated at almost $120,000.

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Source: ediscoverylaw.com