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No Slacking on Objections: Make Your Record or Suffer the Consequences

Joseph V. Schaeffer

No Slacking on Objections: Make Your Record or Suffer the Consequences
gorodenkoff via Getty Images

For attorneys working with e-discovery (and which attorneys are not these days?), it can seem like a technological development is no sooner conquered than a new one rises up to take its place. Take, for example, asynchronous messaging platforms like Slack, which have exploded in popularity as companies push teamwide collaboration—particularly as the pandemic has increased the number of team members working remotely or in distributed locations. It can be tempting for attorneys or their clients to reflexively respond to discovery requests for these new data sources with cries of “Undue burden!” But unless attorneys and clients then support the claim of undue burden with competent evidence, courts are unlikely to sustain the objection based on novelty alone.

In Benebone LLC v. Pet Qwerks, Inc., No. 8:20-cv-00850 (C.D. Cal. Feb. 18, 2021), for instance, the plaintiff objected to producing Slack data because it estimated the approximately 30,000 messages would cost between $110,000 to $255,000 to extract, process, and review based on a blended attorney rate of $400 per hour. The defendant in its motion to compel, however, estimated the cost at $22,000 based on a contract attorney rate of $40 per hour. Critically, only the defendant supported its estimate with an affidavit and testimony from a qualified e-discovery professional. The court accordingly determined that the plaintiff had not met its burden on its objection and compelled the production of its Slack data.

The Benebone plaintiff’s most glaring mistake, of course, was its failure to support its objection with competent evidence of undue burden, such as the ability to extract and process Slack data and the subsequent costs of review. It likely also suffered, though, from its use of a blended $400 hourly rate for estimating its review costs—especially when the defendant was able to establish that qualified contract attorneys could be retained for 1/10 that cost. And, finally, the plaintiff had the misfortune of litigating against an adversary with the foresight to create its own record, and one that made it easy for the court to overrule the objection.

Attorneys should thus take note that novelty alone will not sustain an undue-burden objection and, without competent evidence, courts are likely to rule that the discovery be had.