Court Finds Data Not Reasonably Accessible, Orders Phased Approach to Discovery, and Declines to Shift the Cost of Production

Barrera v. Boughton, 2010 WL 3926070 (D. Conn. Sept. 30, 2010)

Despite diligent efforts, the parties were unable to reach agreement regarding the appropriate scope of a search for responsive information. Plaintiffs proposed 40 custodians, 80 search terms, and a timeframe of nearly seven years. Defendants sought a phased approach and proposed limiting the initial search to three custodians, with plaintiffs to bear the cost. Defendants also objected to the temporal scope of discovery. Citing Rule 26(b)(2)(B), the court found the information sought “not reasonably accessible” and reduced the scope of the search, but denied defendants’ motion to shift costs.

Plaintiffs moved to compel the production of electronically stored information (“ESI”) stored on defendants’ server, using their proposed parameters. Defendants objected that the proposal was unduly burdensome and presented the declarations of two IT experts opining that the cost of the proposed search (not including attorney review) would be approximately $60,000. Accordingly, defendants proposed to significantly reduce the scope of the search, and to shift their costs.

The court’s analysis focused on Rule 26(b)(2)(B) which precludes the obligation to produce information shown to be “not reasonably accessible because of undue burden or cost.” Upon such a showing, the requesting party may still obtain discovery by showing good cause, considering the limitations of Rule 26(b)(2)(C), the rule of proportionality.

The court found that defendants met their burden of showing the information requested was not reasonably accessible and that plaintiffs had not met their burden of showing good cause to compel production despite such a finding. Further, the court was persuaded that a phased approach to discovery was appropriate. Accordingly, the court ordered defendants to search the ESI of three custodians, using the search terms proposed by plaintiffs, for a reduced time period of approximately three years.

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Source: ediscoverylaw.com