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Expensive Production Request Deemed “Costly Fishing Expedition"

Created on September 20, 2019


Director of Marketing at Exterro





Pentel v. Shepard (D. Minn. Aug. 8, 2019) 
re-enforces that for a request for production to be deemed proportional, not only does the data need to be relevant to the case, but the data must help prove the requesting party’s claims or defense.

Overview:

In this class-action privacy lawsuit, the plaintiffs sought to compel a non-party to produce information that would showcase what specific private data was improperly accessed by the defendants. In addition, the plaintiffs asked the defendants to review that data for responsiveness.

The non-party rejected to producing the requested information because it would be “unduly burdensome because of the volume of responsive information and the amount of redaction required to remove ‘sensitive data.’” The non-party estimated that 306,600 pages would need to be reviewed, costing up to $190,000.

The plaintiffs claim that these requested documents are “essential” to the case.

Ruling:

  • Motion to Compel Production Denied. Based on the “massive burden” to the non-party and the defendants, the court ruled that the motion to compel was “not proportional to the needs of this case." 
  • “Costly Fishing Expedition.” Even if the requested data was collected and reviewed, the plaintiffs would not be able to decipher if the data was accessed improperly. Because of this, the court ruled that the plaintiffs were “not well-positioned to speculate” the defendants’ motive and thus found the request overly burdensome. 
Hon. Andrew Peck, Sr. Counsel

Expert Opinion from Hon. Andrew Peck, Sr. Counsel, DLA Piper

The non-party made a specific showing, based on prior experience and a sampling exercise, as to the cost of complying with the request, the difficulty even beyond cost, and that even if the data were produced, it would not answer the requesting party’s issue as to whether access had been for a permissible or impermissible purpose. That type of information, as opposed to generalized claims of “burden,” is crucial to present to the court. The court also relied on Rule 45’s requirement to avoid imposing an undue burden on a non-party.

Case Law Tip: 

Download this guide to understand the rules and requirements for e-discovery practices under the FRCP.