September 30, 2016 Practice Points

Potential Damages Award Largely Immaterial in Determining Whether to Limit ESI Production

Courts have been unpersuaded by argument comparing the actual amount in controversy versus the expense in producing ESI in an attempt to convey unreasonableness.

By Jason M. Wiley

With discovery disputes centering on electronically stored information (ESI) becoming more prevalent, the Federal Rules of Civil Procedure have attempted to clarify parties’ obligations with respect to ESI-based differences. In one instance, the rules provide instruction that certain ESI may be withheld if unduly burdensome or would result in the answering party incurring an unreasonable expense. Practitioners should be aware that courts have been unpersuaded by argument comparing the actual amount in controversy versus the expense in producing ESI in an attempt to convey unreasonableness.

The U.S. District Court for the Northern District of Georgia recently rendered an opinion holding that the amount of potential damages is largely immaterial in determining whether to limit the production of ESI as allowed by the Federal Rules of Civil Procedure. In Mitchell v. Reliable Security, LLC, 1:15-cv-03814-AJB, 2016 WL 3093040 (N.D.Ga. May 23, 2016). The court held “that the public value of allowing a . . . plaintiff opportunity to access information relevant and quite possibly necessary to her discrimination suit far outweighs the asserted cost [of production].”

In Mitchell, the defendant sought to produce certain ESI in PDF format rather than in its native format, arguing that production in its native format would be much more costly and, in lieu of the relatively low amount of damages at issue—about $10,000—unreasonable. In so doing, the defendant relied upon Fed. R. Civ. P. 26(b)(2)(B) in moving for a protective order to limit discovery.

The court, in denying the defendant’s motion for a protective order, held that while there was no reason to believe that the production requested was modified since the commencement of the lawsuit, it was not unreasonable for the plaintiff to verify whether certain documents were manipulated, modified, altered, or changed. As such, the plaintiff was entitled to receive the requested documents in their native format rather than in PDF format. The fact that the defendant would incur additional cost to disclose the production in its native format, especially in light of the potential low amount of damages, did not trigger the protection contemplated in Fed. R. Civ. P. 26(b)(2)(B) as the court held that policy concerns trumped any financial concerns.

While the Federal Rules of Civil Procedure provide an avenue for withholding ESI due to unreasonableness or expense, attorneys should be cognizant that the rules also provide that the court may order such discovery over the withholding party’s objection upon a showing of good cause.

Jason M. Wiley is with Armstrong Teasdale, LLP in Las Vegas, Nevada.

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