In this single-plaintiff employment discrimination case (Bailey v. Brookdale Univ. Hosp., 2017 U.S. Dist. LEXIS 93093 (E.D.N.Y. June 16, 2017)), counsel for the parties purportedly met and conferred as directed by the Court and, thereafter, entered into an ESI agreement (“Agreement”).  The Agreement was presented to the Court and represented to be the product of mutual negotiation.  As a result, the Court So-Ordered the Agreement and its terms.

During discovery, Bailey advised the Court that he was no longer able to comply with the Agreement because the data production costs would cause an economic hardship. Specifically, he claimed the cost of production – estimated at $2,000-$3,000 – was unduly burdensome in light of his personal financial situation, notwithstanding the Agreement.  At the Court’s request, Bailey submitted an affidavit estimating the cost of production and that such a cost would inflict a “severe financial hardship” on him given that he earned approximately $90,000 annually and was the sole provider for his family of five.  In evaluating Bailey’s grievance, the Eastern District considered cost-shifting to protect Bailey from incurring an undue burden or expense. For cost-shifting to be properly granted, however, there must be sufficient proof of economic hardship and evidence that the requested data is inaccessible.  The Court found neither was established by Bailey. Nonetheless, the Court found that the Agreement proposed by Defendants was of a type, “typically utilized in a more complex litigation involving multiple parties and corporate entities” and had no applicability to a single plaintiff.   As a result, the Court concluded that Bailey’s counsel did not engage in meaningful discussions with his client regarding the terms of the proposed Agreement and what costs might be incurred by producing the information in the format the defendants sought. Likewise, it further appeared to the Court that Bailey’s counsel did not engage in a meaningful meet-and-confer session with opposing counsel, and did not thoroughly review the Agreement prior to signing it.

The Court did not find sufficient grounds to terminate the Agreement, and instead ordered partial cost-shifting [so that Defendants received the form of production they negotiated for], requiring the defendants to bear 40% of discovery costs and Bailey’s counsel, rather than Bailey himself, to bear the remaining 60%.

This case serves as an important reminder of counsels’ obligation to engage in good faith in all aspects of the discovery process – including negotiating an ESI production protocol.  Here, the Court was unwilling to revise the Agreement, and instead required Bailey’s counsel to abide by the terms of the Agreement and pay for the production.  This case also serves as an important reminder of our duty, as lawyers, to be competent in the law and the technological world in which we practice.  Indeed, as attorneys practicing in today’s ever-increasingly electronic world, we must remain abreast of the intricacies involved in electronic production and the costs associated with that ESI.  (See earlier blogs discussing duty of competence)

In Sunderland v. Suffolk Cty., 2016 U.S. Dist. LEXIS 77212 (E.D.N.Y. June 14, 2016) Magistrate Judge A. Kathleen Tomlinson granted plaintiff’s motion to compel defendants to search for and produce certain documents from their personal computers.

Specifically, plaintiff – a transgender inmate incarcerated at Suffolk County Correctional Facility (“SCCF”) – brought a civil rights case against the County of Suffolk and also three individuals in both their individual and official capacities. The gist of the complaint, as against the individual defendants, was that they knew of plaintiff’s gender dysphoria but were dismissive of the condition and refused to continue plaintiff’s hormone therapy while incarcerated at SCCF.

While the parties agreed on the relevant time period and search terms for purposes of identifying relevant information, the parties disagreed as to whether the individual defendants were required to search their personal emails and computers.  The defendants argued that while their electronic work devices and accounts can be searched, their personal items are not discoverable.  Plaintiff moved to compel production of personal emails.

The court granted the plaintiff’s motion to compel, explaining that the personal documents are relevant under FRCP 26(b)(1), even after the December 2015 amendments. The court elaborated that the nature of the case made it likely that information relevant to claims of bias, deliberate indifference or state of mind, would have been kept on a personal device or account rather than a work one. In its reasoning, the court further explained that such a search is not overly burdensome because the parties already agreed to the terms to be used, the searches had a limited temporal scope, and the plaintiff insisted that the defendants’ computers would not have to undergo forensic inspection.

While this decision is important for a number of e-discovery principles, it is also a good reminder that one should limit personal devices to personal emails and, likewise refrain from using work computers/emails for personal purposes.

United States ex rel Guardiola v. Renown Health, No. 3:12-cv-00295-LRH-VPC, 2015 WL 5056726 (D. Nev. Aug. 25, 2015)

In this case involving a motion to compel, the District Court addressed Defendants’ claim that emails stored on backup tapes were not reasonably accessible because of the undue burden and cost associated with retrieving them.  Turning first to the question of “undue burden”, the Court noted that the party who bears the burden of establishing inaccessibility “must establish that restoration and production of its particular tapes or other storage media, due to their particular aspects and features, would impose undue burden or cost.”  Further reasoning that “there will be a burden or a cost, but not both,” the court noted that restoration was “technologically feasible,” as evidenced by the restoration of one tape, and reasoned that because Defendants indicated the need to rely on a vendor, “[b]y implication, [Defendants] will ameliorate the burdens of in-house production, though at some cost.”  Thus, per the court, the “remaining question [was] only whether undue cost of the third-party vendor ma[de] the … emails not reasonably accessible.”

Regarding the question of “undue cost,” the court rejected Defendants’ argument that “cost” under Rule 26(b)(2)(B) included document review and storage.  Thus, assessing only Defendants’ estimate that restoration would cost approximately $136,000, the Court concluded that the amount was not undue. Explaining that “[u]ndue cost is examined not as a number alone, but instead within context of myriad facts,” the court went on note that it was Defendants that “elected to store typical disaster recovery tapes with archival data,” and further reasoned that:

ESI is now a common part and cost of business. Businesses are best situated to weigh for themselves the costs and benefits of various technology solutions in light of their needs. These needs should include some thought to the risk of litigation and corresponding discovery obligations. To the extent that restoration costs in this case owe to Renown’s failure to earlier implement a sensible email retention policy and its choice to use an archival/backup solution that did not maintain ESI in an indexed or otherwise searchable manner—a conclusion that Renown itself advances—Renown must bear some responsibility within the consideration of whether the restoration cost is undue.

In further support of its determination that the cost of restoration was not undue, the court noted that the estimated amount was an “infinitesimally small portion of [Defendants’] annual revenues.”  Accordingly, Relator’s motion to compel was granted.