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Do Overly Broad eDiscovery Requests Allow for Cost-Shifting?

Posted on July 21st, 2014

In Georgia-Pacific LLC v. OfficeMax Inc., et al., (N.D. Cal. June 30, 2014), the court was tasked with deciding whether Plaintiffs’ objections to Defendants’ broad electronically stored information (ESI) requests necessitated cost-shifting.

Defendants requested that Plaintiffs produce its executive emails from five custodians, including:

1. The executives’ servers, shared files, laptops, blackberries, and home computers within five days to a qualified outside consultant.

2.  A search by the consultant of all emails and attachments that included the word “Bragg” or were to or from TRC, Arcadis, and AME (Plaintiffs’ consultants) and the generation of a list of each documents including metadata showing to, from, date, and subject.

Plaintiffs objected to the eDiscovery production requests and sought cost-shifting on the ground that the email production would cost $7,000 to $10,000 per custodian, while only producing information of marginal relevance.

Plaintiffs specifically noted:

1. Key documents relating to the executive custodians had been produced through other custodians.

2. Discovery costs had been asymmetrical throughout the litigation, with Plaintiffs having borne the brunt of producing documents at both Defendants’ request and of their own accord.

The court agreed that the Defendants’ broad ESI requests, paired with a single keyword search, would lead to an unnecessarily vast production. Noting the targeted and proportionate discovery required by FRCP 26, the court acknowledged that cost shifting can occur for disproportionate ESI production requests.

Ultimately, however, the court ordered an intermediate approach that would allow retrieval of the executives’ emails without the expense of further processing. The intermediate approach called for the parties to verify if Plaintiffs’ relevant custodian emails had already been produced, for Plaintiffs to verify that its key custodians would be recipients of any emails regarding Fort “Bragg,” and to then retrieve and process the emails.

ILS – Plaintiff eDiscovery Experts

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