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ESI Cost Shifting Request Denied By Court in Employment Case

Posted on August 3rd, 2016

Wagoner v. Lewis Gale Medical Center, LLC, et. al., Case No. 15-570 (W.D. Va., July 13, 2016) is an employment lawsuit filed under the Americans with Disabilities Act (ADA). Plaintiff, a former employee of Defendants, alleges that because of his dyslexia, he had difficulty reading and copying his work schedule. He also alleges that Defendants refused to provide a written copy of his work schedule. He was ultimately terminated and filed suit.

During discovery, Plaintiff requested production of electronically stored information (ESI) maintained by two custodians, Caballos and Baker, who were his supervisors. The requested ESI search was limited to four months and 14 search terms. Defendants responded that they did not have the capability to perform the searching on their own and obtained estimates from third-party vendors to search seven computers. Plaintiff sought to compel the production; Defendants argued it would cost more to perform the ESI searching than the amount of Plaintiff’s potential damages. Defendants also argued that they had produced “considerable ESI” by gathering emails manually from certain computers.

The search terms sought were related to Plaintiff and to dyslexia. The court found that the search terms and any documents they may unearth were relevant, as Plaintiff’s ADA claim was based upon his dyslexia. Defendants conceded relevance, but argued that the search terms were too broad. The court nonetheless found that the searches were relevant and that the emails already produced were not shown to be of the same scope.

Defendants then argued that the discovery was not proportional to the needs of the case, and that an order to perform the searches and produce the discovery should include shifting the costs to Plaintiff. The court found that the production costs did not result in the ESI being rendered “not reasonably accessible”, and further found that Defendants had failed to make a sufficient showing of disproportionality. In making these findings, the court determined that information is “accessible” if stored in a readily usable format, and that the Defendants’ production obligations are not nullified by their use of a system that only preserves emails in an easily searchable format (a format that they could search without expert assistance) for three days.  The court ordered the Defendants to make the production requested and declined to order ESI cost shifting.

ILS – Plaintiff Electronic Discovery Experts

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