By Mike Hamilton, J.D.
Under Federal Rule of Civil Procedure (FRCP) 34, “a party is required to produce requested documents if they are within his ‘possession, custody, or control,’” including electronically stored information (ESI). The rule seems fairly straight forward but it becomes far more opaque when you consider those people who only “might” have relevant or discoverable information. Does FRCP 34 require that their data be searched as well? Are these people deemed to possess relevant documents under the rule even if there’s a chance they may not have any?
The answer to these questions often depends on the circumstances surrounding the case. However, McNearney v. Wash. Dep’t of Corr. (W.D. Wash. Aug. 1, 2012) does offer some clarity. In this case, the District Court ruled that the producing party, the defendant Wash. Dep’t of Corr. (DOC), under Rule 34 must at least make an inquiry into whether specified custodians within the production request held responsive ESI. The court ruling was based on the following facts:
- Within plaintiff’s production request, plaintiff identified specific employees that were likely to have responsive information.
- Defendant did not dispute that it “failed to search for responsive discovery in the files of numerous employees identified as likely having discoverable information.”
- Rather than produce all requested ESI, defendant argued that the production request was unduly burdensome on the grounds that mere speculation that an employee possesses relevant information does not mean that they actually do.
- The court sided with the plaintiff, stating that the producing party has a duty to at least “make the inquiry” into whether specified employees possess responsive information.
For the court to reject plaintiff’s motion to compel production the defendant has the burden to prove that plaintiff’s production requests were unduly burdensome. The defendant offered no evidence to back up their contention, therefore the court granted plaintiff’s request to compel discovery from defendant.
THE E-DISCOVERY BEAT’S TAKE
Everyone talks about defensibility, but what about the flip side, vulnerability. Defendant’s like DOC may have legitimate claims that search / production parameters are unduly burdensome, but these defendants are vulnerable to judicial scrutiny when they simply infer or speculate based on looking at the request, instead of actually proving their claim. Parties need immediate access to search and identify where and how much responsive ESI exists so they can estimate potential costs for production and present concrete proof to a judge that the relevancy of the information sought is minimal and/or the costs of searching, processing, collecting and then producing the information outweighs the value of the case.
Technology has come a long way in helping parties know more about their case sooner. Questions surrounding whether someone “might” have responsive information can now be immediately answered. Instead of speculating, parties can now easily prove when a production request is unduly burdensome rather than leave it in the hands for a judge to decide.
Mike Hamilton, J.D. is a Sr. E-Discovery Analyst at Exterro, Inc., focusing on educating Exterro customers, prospects and industry experts on how to solve e-discovery issues proactively with technology. His e-discovery knowledge, legal acumen and practical experience give him a valuable perspective on bridging the gap between IT and legal teams. You can find him on Google+, Twitter and Linkedin.