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.