Court orders second production of ESI in a reasonably usable form and rejects argument that foreign privacy laws or the Hague Convention bars production of personal information

AccessData Corp. v. ALSTE Technologies GMBH, 2010 WL 318477 (D.Utah Jan. 21, 2010)

AccessData is a software developer that entered into an agreement with ALSTE to sell its software products. AccessData brought a breach of contract action against ALSTE involving the sale of its forensic software. ALSTE claimed that the software was defective and filed a counterclaim asserting a breach of a technical support agreement. In discovery, AccessData sought production of information concerning customer complaints and any damages flowing from that counterclaim. ALSTE objected, arguing that the discovery requests were overbroad and the disclosure of information about the identities of third parties who voiced the complaints would violate German law. AccessData brought a motion to compel that information and also sought the reproduction of emails in their native format.
Read the rest of this entry »

PowerPoint Slides about the Seventh Circuit Ediscovery Pilot Program

The Seventh Circuit Electronic Discovery Pilot Program was developed as a result of continuing comments from the business and legal community about the need to reform the civil pretrial discovery process. A committee of trial judges, lawyers, academics and expert consultants met to consider how the cost and burden of electronic discovery can be reduced.

The committee developed a set of ediscovery principles intended to serve as supplemental guidelines to be followed by litigants participating in the program. These principles were codified into a standing order which is being used in selected cases to assess their effectiveness. Kenneth J. Withers, the Director of Judicial Education and Content for The Sedona Conference, and Rebecca L. Kourlis, the Executive Director of the Institute for the Advancement of the American Legal System at the University of Denver assisted in the process of drafting these principles.

What makes these principles unique is that they will be tested during phases of the Pilot Program. The results for Phase I of the program will be presented in May 2010 at the Seventh Circuit’s Annual Meeting. They will then be evaluated and refined. Phase II will then run from June 2010 to May 2011. At that juncture, the committee will present its findings and issue its final principles.

Below is to a set of PowerPoint slides addressing the program and the ediscovery principles that are currently being tested.

Court rules that emails are not reasonably accessible due to undue burden and cost under Rule 26(b)(2)(B)

Rodriguez-Torres v. Gov’t Dev. Bank of Puerto Rico, 2010 WL 174156 (D.P.R. Jan. 20, 2010)

Given the frequency that emails are requested in discovery, this decision merits your attention. In Rodriquez-Torres, the court denied plaintiffs’ motion to compel the production of emails about her, ruling they were “not reasonably accessible” under Rule 26(b)(2)(B).

Plaintiff and her husband brought an employment discrimination claim under ADEA, Title VII, the Lilly Ledbetter Fair Pay Act and 42 U.S.C. §1983. In discovery, plaintiffs sought “all email communications and calendar entries” for a three-year period “describing, relating or referring to plaintiff Vicki Rodriguez, both inbound and outbound” from the defendant’s “messaging system servers.” Plaintiffs requested that the data be produced in its “native electronic format with its original metadata” intact. Defendant objected, claiming plaintiffs’ request was overbroad. Defendant argued that compliance would likely produce “hundreds, if not thousands, of documents” that would include “irrelevant, confidential and potentially privileged information.” Plaintiffs brought a motion to compel and sought discovery sanctions.

The court initially directed the parties to provide information concerning the cost involved in producing the requested information. Plaintiffs were further directed to explain what information they anticipated finding in the native format documents. The parties submitted a report from an ediscovery vendor which estimated the cost of producing the ESI at approximately $35,000. The estimated costs included a $5,000 charge for the configuration and creation of a Concordance Database.

Based on this information, the court determined the emails that plaintiffs sought were not reasonably accessible. The court found that $35,000 was “too high of a cost for the production of the requested ESI in this type of action.” (In their prayer for relief, plaintiffs sought $1.4 million dollars in compensatory damages). Recognizing that the volume of information involved and its form makes privilege determinations more difficult and time-consuming, the court also expressed a concern over the additional cost that would be incurred in reviewing the requested emails for relevancy and privilege.

The court recognized that under Fed. R. Civ. P. 26(b)(2)(B) it could nonetheless order production of the emails if good cause was shown. In an attempt to show what information they could find in the emails, plaintiffs pointed to three articles which suggest that email usage encourages individuals “to write unguarded, unwise and often inappropriate comments.” That argument did not persuade the court that good cause warranted production of the emails. The court explained: “Just because emails are more likely to lead to inappropriate comments is not a sufficient basis to believe that the ESI requested here will lead to the discovery of the information Plaintiffs claim they will discover.” The court concluded that the plaintiffs’ request was merely a “fishing expedition” and denied their motion to compel.

Practical Ediscovery tip: The party asserting undue burden under Rule 26(b)(2)(B) bears the burden of proof. To succeed in establishing the requested discovery will be unduly burdensome or costly to produce, it is imperative that you provide the court with concrete information about the costs and/or personnel hours that will be required to obtain, review and produce the requested information. Vague and unsupported assertions of undue burden will inevitably be rejected by the court.