Court Finds Defendant BOA’s Arguments Against Producing ESI Meritless
In Jones et al. v. Bank of America, N.A., Case No. 3:14-cv-11531 (S.D.W.Va. April 21, 2015), the Southern District of West Virginia considered Defendant Bank of America’s objections to producing ESI for Plaintiff mortgage borrowers’ document requests.
Plaintiffs requested production of ESI and a number of documents, including but not limited to email communications, the claim review file, and reports to a government-maintained computer database. Defendant offered boilerplate objections to the requests, claiming they were unduly burdensome, overly broad, and excessively expensive to comply with. It also claimed the requests sought documents protected by the work product and privilege protection, but did not provide a privilege log.
The court first noted that although defendant had contented that the requests would be unduly expensive to comply with, defendant provided no information to support that claim. Defendant provided no information about its electronically stored information (ESI), including the type or number of databases used to store ESI, the location and accessibility of the databases, the manner in which the data is stored, backed-up and maintained, or the capability to perform searches. Further, the court observed that although Defendant claimed producing electronic documents from the government-maintained computer database would be unduly burdensome, it offered no collaborating evidence or affidavits to support such a claim. The court noted that contrary to Defendant’s assertions, many reporting databases have search mechanisms that make it easy to locate, review, and update reports in the system. The court concluded that Defendant’s objections to producing the ESI were meritless.
Accordingly, the court required Defendant to provide full and complete responses to Plaintiffs’ requests (except for one subcategory.) The court denied Defendant’s request for cost shifting because it “entirely failed to demonstrate good cause.” The court also noted that Defendant must provide a privilege log for any documents withheld due to privilege or work product.