In this employment discrimination lawsuit, the court denied the defendant’s motion to shift the costs of e-discovery for records that the defendant itself rendered unsearchable.
The defendant, the Coatesville Area School District (“CASD”), previously employed both plaintiffs, Abdallah Hawa and Teresa Powell. The plaintiffs launched a employment discrimination and retaliation claims after finding racist text messages between CASD administrators.
During discovery, the plaintiffs requested electronically stored information (ESI), including emails, from CASD hard drives. CASD stored these materials “as pictorial images on unique proprietary software,” rendering them “not searchable by word searches.” Notably, CASD chose “to store the documents in this fashion” rather than in a searchable format.
CASD argued that because it would cost $15,000 to $25,000 to produce this ESI, in addition to monthly hosting fees, it was effectively inaccessible. This expense was despite the “extensive cooperative efforts [by both parties] to narrow and limit the scope” of the requested discovery. CASD moved the court to shift all, or at least 80%, of the cost of that discovery to the plaintiffs.
Under Federal Rule of Civil Procedure 26(b)(2)(B), ESI that is “not reasonably accessible because of undue burden or cost” need not be provided. Alternatively, the court can order that the requesting party pay for the production of such inaccessible data. Here, the court agreed that the ESI was inaccessible. However, “inaccessibility of data merely raises the question of whether” costs should be shared; it does not mandate cost-sharing.
The court looked to the seven factors established in Zubulake v. UBS Warburg LLC, 216 F.R.D. 280 (S.D.N.Y. 2003), to decide whether cost shifting was warranted. First, production of the ESI that the plaintiffs sought was “likely to lead to the discovery of relevant information.” Second, CASD failed to prove that that information would be “available from other sources.” Third, the cost of production “is not excessive in comparison to the amount in controversy.” Fourth, “CASD has much greater resources to pay for the discovery” than the plaintiffs. Fifth, both parties had “worked collaboratively to control the costs” of discovery. Sixth, regarding the “importance of the issues at stake in the litigation,” the court noted that “CASD is a public entity” that is accused of misconduct. The court did not explicitly evaluate the seventh factor, “the relative benefits to the parties of obtaining the information.”
Because the Zubulake factors “weigh in favor of CASD bearing the costs” of this electronic discovery, the court denied the motion. Both parties settled on July 5, 2017.
Takeaways on navigating ESI and Rule 26
Well before litigation begins, consider how you should store your own potentially discoverable information with an eye to future discovery needs. Is your ESI accessible and readily searchable? Or will it be exceptionally burdensome for you to filter and analyze in response to requests for production? Use FRCP 26(b)(2)(B) as a guide to establish ESI best practices.
In this case, CASD created its own “inaccessibility” dilemma. Therefore, the court was unsympathetic to its complaints about the expense of searching that ESI for discoverable information.
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