In the putative class action lawsuit Solo, et al. v. UPS, No. 14-12719, E.D. Michigan (Jan. 10, 2017), Plaintiffs alleged that Defendant breached its contract due to over-billing practices. The parties sought the court’s guidance to resolve a proportionality discovery dispute under FRCP 26(b).
Plaintiffs requested packaging information for all qualifying shipments made within five distinct time periods. UPS objected to the request, claiming it was unduly burdensome and costly under FRCP 26(b). UPS argued that due to the vast amount of packaging data it manages, the “package level detail” Plaintiffs sought was only live for a short period of time before being archived in back up tapes. UPS estimated it would take 6 months and approximately $120,000 to produce this electronic data.
Citing proportionality under FRCP 26(b), the court found that the ESI production sought would be unduly burdensome. To balance the need for Plaintiff’s request for the data and UPS’s objections to production as unduly burdensome, the court ruled that statistical sampling would suffice and would satisfy FRCP 26(b)’s requirements. The court ordered the parties to meet and confer regarding the methodology for the statistical sampling. It concluded if the parties could not come to an agreement, Plaintiff could re-request the production in full if it chooses to bear the cost.