Jim Hawk Truck-Trails of Sioux Falls, Inc. v. Crossroads Trailer Sales & Service, Inc., (D.S.D. July 29, 2022) showcases how a party can persuade the court to narrow e-discovery parameters if that party presents metrics proving an undue burden.
In this tort and contract case, a dispute between the parties arose over disagreements around e-discovery activities. Before the motion, the defendants had already:
- Searched 13 custodians
- Produced documents relating to 92 out of the 99 search terms requested by the plaintiff
The defendants disputed the need to produce documents relating to the final 7 search terms, because it would “dramatically increase the volume of ESI to be reviewed.” The defendants presented evidence to the court that to conduct the additional search it would cost between $3,150 - $4,275 for processing and approximately $114,586 for document review.
Based on the defendants refusing to comply with the discovery parameters, the plaintiff moved to compel the defendants to add the seven additional search terms to their e-discovery parameters and produce the related documents.
- Motion to Compel Denied. The court denied the plaintiff’s motion because the additional search terms were not reasonably accessible, and the plaintiff failed to show good cause for the search terms’ inclusion.
- Reasonably Accessible. The court believed that accessing the raw data was feasible but questioned whether the burden to find relevant documents was undue. The judge ruled that the amount of documents produced and the time and cost it would take to find relevant documents made the data reasonably inaccessible.
- No Good Cause. The defendants presented evidence that the relevancy rate of finding responsive documents with the 92 search terms used was around 5-7%. Based on this low relevancy rate, the judge concluded that this low relevancy rate would make it likely that searches on the additional terms would be around the same. Thus, the burden of conducting the additional search was not justified.
Expert Analysis from Hon. Andrew Peck (ret.), Senior Counsel, DLA Piper
The Court reached the right result but, in my view, used the wrong analysis. The “Not reasonably accessible” test in Rule 26(b)(2)(B) really relates to technological inaccessibility (e.g., encrypted data and the key is unavailable), not the cost of review. The cost of review is one of the 26(b)(1) proportionality factors. And here, the responding party correctly gave the court metrics showing how much data it had already produced, the low responsiveness rate of that data, and reliable (uncontested) estimates of a six-figure cost to review the additional search terms. Right result, wrong analysis.
Case Law Tip
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