August 31, 2017 Articles

Demands to Produce ESI: Demonstrating Undue Burden and Cost

Quantification based on "best predictions" is vital whenever a party challenges a discovery demand on the basis of undue cost.

By Ronald Hedges

Federal Rule of Civil Procedure 34(a)(1)(A) permits a party to “inspect, copy, test, or sample” electronically stored information [ESI] “stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding party into a reasonably usable form.” Rule 26(b)(2)(B) provides that a responding party need not provide discovery if the ESI is from a source that is “not reasonably accessible because of undue burden or cost” and imposes the burden of proving undue burden or cost on the party resisting discovery. And Rule 26(b)(2)(C) permits limitations on the frequency or the extent of discovery under certain circumstances. More generally, Rule 26(c)(1) allows for the issuance of protective orders against undue burden or expense.

How might these principles play out in specific litigation? Duffy v. Lawrence Memorial Hospital, No. 2:14-cv-2256-SAC-TJJ (D. Kan. Mar. 30 2017), offers answers for both requesting and responding parties with respect to discovery.

Premium Content For:
  • Litigation Section
Join - Now