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October 31, 2017 Practice Points

Asking for Limits on Discoverable ESI Can Yield Favorable Results

Your ESI dispute may merit asking the court to intervene, especially where the data is over-inclusive in its existing state.

By Robert J. Will

In a multi-district litigation combining numerous personal-injury claims arising from allegedly defective airbags, the parties disagreed on the protocols with respect to (1) the procedure for redacting irrelevant information from responsive documents and (2) whether irrelevant parent documents and other documents that are not attachments from responsive document families can be withheld entirely. A special master was appointed to determine a protocol for producing certain documents and electronically stored information (ESI) and to recommend an appropriate ruling. In re: Takata Airbag Prod. Liab. Litig., 2016 U.S. Dist. LEXIS 46206 (S.D. Fla. Mar. 1, 2016).

In coming to a decision, the special master weighed the various factors on proportionality for discovery requests under Fed. R. Civ. P 26(b)(1)—specifically, (1) the importance of the issues at stake in the action, (2) the amount in controversy, (3) the parties’ relative access to relevant information, (4) the parties’ resources, (5) the importance of the discovery in resolving the issues, and (6) whether the burden or expense of the proposed discovery outweighs its likely benefit. After this review, the special master agreed with the defense position on both issues, allowing redaction of information pertaining to seven categories of information deemed irrelevant: (1) pricing, profits, non-public financial information; (2) parts, suppliers or costs; (3) design, development, and engineering; (4) marketing and business strategy; (5) other makes and models; (6) non-U.S. products; and (7) service and quality issues. The special master also recommended that a producing party be allowed to withhold irrelevant parent documents.

The court adopted the special master’s report, with a modification that information concerning “airbags” could not be redacted from any of the seven listed categories. Citing Judge Roberts in his 2015 Year-End Report on the Federal Judiciary, the court remarked that because a party is not entitled to receive every piece of relevant information under the federal rules as they now are conceived, it was reasonable and “proportional” to allow the broad categories of redaction proposed by the special master, with the single caveat referenced above.

The lesson to be drawn from this case is that after the 2015 Rules amendments, litigants and courts should be far more willing to give serious consideration to reasonable limitations on broad document or ESI requests seeking what a court deems ultimately to be irrelevant (or even marginally relevant information).


Robert J. Will is a member of Lewis Rice LLC in St. Louis, Missouri.

Copyright © 2017, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).