Can a defendant successfully convince a court that because its electronic database is “large and unindexed,” the defendant does not have to search the database for responsive records pursuant to a plaintiff’s ESI request? Or, alternatively, if a court requires a defendant to search a “large and unindexed” database, should it shift the costs of production onto the plaintiff’s shoulders? The United States District Court in New Mexico recently answered both of these questions and sided with the plaintiff in Navajo Nation v. Urban Outfitters, No. 12cv0195 LH/LAM (D.N.M. November 21, 2014).
Plaintiff Navajo Nation alleged that two years after it filed suit, Defendant Urban Outfitters disclosed the existence of a company-wide shared database containing a massive 34.5 terabytes of data. Defendant resisted searching the database, claiming that its size and the fact that it was unindexed made it unduly burdensome to search the database. Defendant also claimed that the database would likely produce information duplicative of what it had already produced. In the event that the court ordered the production anyway, Defendant requested that Plaintiff bear the cost.
Plaintiff responded to Defendant’s claims by proposing a plan to reduce the time and cost of review, suggesting that Defendant:
- Interview the relevant custodians regarding the database and location of relevant documents;
- Collect only groups of documents identified as relevant by the interviewed custodians;
- Search the identified documents with agreed-upon keywords, and review only the resulting documents.
The court accepted Plaintiff’s proposal as reasonable and ordered that Defendant conduct the search Plaintiff requested. The court explicitly rejected Defendant’s assertion that the size and difficulty of searching the database could excuse Defendant from complying with its ESI obligations. Finally, the court “found no reason” for Plaintiff to bear the costs of the production, noting in particular that Defendant had violated its obligations under FRCP 26(f) by failing to inform Plaintiff about the existence of the database until two years after the litigation commenced.