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Court Disagrees With Defendants’ Apocalyptic Picture of Plaintiff ESI Requests

Posted on May 11th, 2015

In a colorful and humorous court option, the District Court of Connecticut considered Defendant’s motion for protective order regarding Plaintiff ESI requests in Bagley v. Yale University, Civil Action No. 3:13-CV-1890(CSH) (D.Conn. April 27, 2015). Plaintiff, a former professor at Yale, alleged wrongful termination.

Plaintiff had named 24 individual custodians and designated 23 separate search terms. Yale staff and attorneys “commandeered” the custodians’ computers to perform the searches. Defendants produced ESI from 8 custodians, totaling over 11.88 gigabytes of data (the equivalent of 1 million email files). Defendants then contented that of this large production, only about 8 percent of data was not privileged and responsive. Defendants sought a protective order to have the court allow them to cease searching for ESI, arguing that it was unduly burdensome under FRCP 26(b).

Plaintiff contended that Defendants exaggerated the difficulties they faced to comply with Plaintiff’s discovery requests. Indeed, Plaintiff noted that Defendants’ motion referred to Plaintiff’s initial discovery requests when the parties had actually re-negotiated and agreed to a modified version that limited the custodians to 10, not 24, and had limited date ranges and search terms. Of the 10, only four custodians’ ESI remained unsearched.

The court cited FRCP 26(b)(2)(B) and its two-stage inquiry, posing the following questions:

  1. Has the party objecting to discovery shown that the ESI is not reasonably accessible due to undue cost?
  2. Has the party seeking the discovery demonstrated “good cause”?

The court concluded that Defendants had not carried their burden, and that, in any event, Plaintiff had demonstrated good cause. Plaintiff’s allegations included violations of federal anti-discrimination statutes and principles of common and state law. The court noted that plaintiffs often prove such violations through circumstantial evidence, which gives rise to wide-ranging and nuanced discovery.

The court reasoned that although Defendants were clearly irritated by having to search for a “needle in a haystack,” their irritation did not preclude the possibility that Plaintiff might find two or three sharp needles in that haystack. Accordingly, the court denied Defendant’s motion for protective order.

ILS – Plaintiff Electronic Discovery Experts

Did you know? Judge C.S. Haight, who penned the discovery order in Bagley v. Yale, is an alum of the university himself, graduating in 1952.

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