Identifying inaccessible sources of ESI just got a little easier

January 8th, 2010 | By Steve Puiszis

Fed.R.Civ.P. 26(b)(2)(B) explains that a party need not produce electronically stored information (“ESI”) from sources that are not reasonably accessible because of undue burden or cost. Parties are expected to produce relevant, non-privileged information from sources that are “reasonably accessible” subject to Rule 26(b)(2)(C)’s limitations that apply to all discovery under the federal rules. This “two-tier” approach to ediscovery is easy to recite but can be very difficult to apply in practice. At what point does a source of ESI cross the threshold from reasonable accessibility to inaccessibility under the Rule? Are there sources of information that parties can readily agree are not reasonably accessible? Alas, neither Rule 26(b)(2)(B) nor its accompanying committee note provide any helpful insight. Indeed, the 2006 Advisory Committee Note states “[i]t is not possible to define in a rule the different types of technological features that may affect the burdens and costs of accessing electronically stored information.”

The Report of the Judicial Conference Committee on Rules of Practice and Procedure (“Standing Committee Report”) which predated the enactment of the 2006 ediscovery amendments to the federal rules provided some insight. The Standing Committee Report did note that the features of an information system that make it burdensome or costly to access ESI can vary from system to system and will change over time. However, it provided several examples of “current technology” that do not generally fit under the rubric of reasonable accessibility. Those examples included “deleted information, information kept on some backup-tape systems for disaster recovery purposes, and legacy data remaining from systems no longer in use.” See THE NEW E-DISCOVERY RULES, Dahlstrom Legal Publishing, Inc. (2006) at p. 15. Unfortunately, that guidance was not carried over into the 2006 Advisory Committee Note to Rule 26(b)(2)(B).

The difficulty identifying and then proving that a particular source of information was inaccessible under the Rule has resulted in decisions such as Starbucks Corp. v. ADT Sec. Services, Inc., 2009 WL 4730798 *6 (W.D.Wash. April 30, 2009), where one court concluded:

The Court cannot relieve Defendant of its duty to produce those documents merely because Defendant has chosen a means to preserve the evidence which makes ultimate production of relevant documents expensive…. To permit a party to ‘reap the business benefits of such technology and simultaneously use technology as a shield in litigation would lead to incongruous and unfair results.

All is not lost, help has arrived. The task of identifying sources of ESI that are inaccessible has been streamlined by one of the principles promulgated in the Seventh Circuit’s Electronic Discovery Pilot Program. One of our prior blog posts highlighted the main features of the Seventh Circuit’s Pilot Program [Info about the program - PDF] which was developed in response to comments by the business community and practicing attorneys that the civil justice system’s pretrial discovery process is in need of reform. The purpose of the Seventh Circuit’s Pilot Program is to assist courts in the administration of Fed.R.Civ.P. 1 and secure “the just, speedy, and inexpensive determination” of every civil case.

A series of ediscovery principles were developed and codified into a standing order that is used as part of the Seventh Circuit’s Pilot Program. Principle 2.04(d) addresses the scope of preservation and identifies categories of ESI that are generally not discoverable in most cases. Those categories of ESI are:

• “Deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives;
• Random access memory (RAM) or other ephemeral data;
• On-line access data such as temporary internet files, history, cache, cookies, etc.;
• Data in metadata fields that are frequently updated automatically, such as last-opened dates; and
• Backup data that is substantially duplicative of data that is more accessible elsewhere;
• Other forms of ESI whose preservation requires extraordinary affirmative measures that are not utilized in the ordinary course of business.

Principle 2.04(d) further provides that if any party intends to request the “preservation or production of these categories” of ESI, then that should be discussed at the party’s initial meet and confer conference or as soon thereafter as practicable. Obviously, Principle 2.04(D) streamlines the process of identifying inaccessible sources of information. While it does not categorically prohibit discovery of ESI from those sources, it suggests that discovery from them will not be permitted unless a good reason or compelling need is shown.

While this principle will primarily benefit those attorneys practicing in district courts within the Seventh Circuit’s boundaries, attorneys practicing outside of the Seventh Circuit’s “friendly confines” should be aware of principle and consider raising it as persuasive authority when resisting attempts to obtain discovery from those sources of ESI identified in Principle 2.04(d).

Please remember however, that identifying a source of ESI as inaccessible under Rule 26(b)(2)(B) does not obviate the client’s need to preserve that information. The Advisory Committee Note to Rule 26(b)(2)(B) highlights that conundrum by explaining: “whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case.” Thus, the need to continue to preserve ESI from inaccessible sources should be another topic of potential discussion with opposing counsel at

Photo courtesy Flickr user eurleif under this Creative Commons license.

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