Sometimes determining whether a production request is proportional or not requires a lengthy amount of negotiation to clearly understand the producing party’s burden.
In this breach of contract case, the defendant opposed the plaintiff’s motion to produce backup tapes based on the production being unduly burdensome and not proportionate to the needs of the case.
For about a year, the parties went back and forth to identify if the requested backup tapes could be restored and how much it would cost to do so. Thirteen meetings between the parties took place, which included discussions about:
After all this, the defendant still felt that requesting these backup tapes was unduly burdensome and filed their opposition to the plaintiff’s request. The plaintiff remained skeptical regarding the actual cost to restore the backup tapes and whether certain tapes were truly impossible to produce.
Motion to Compel Granted. Since relevancy of the backup tapes was never disputed by the defendant and the estimated cost to produce the available backup tapes was reduced, the court ruled that producing the documents fell within the scope of discovery.
Plaintiff Successfully Rebukes Defendant’s Proportionality Claim. With the amount in controversy being over $20M, the cost to recover the backup tapes only being $12,968, and the fact that 29% of the backup tape data was not duplicative of information already produced, the court ruled the benefit of discovery outweighed the risk.
Further Inspection Required. To ensure that data deemed unavailable by the defendant is truly in fact unavailable, the court said they would address that issue in a subsequent order.
Download the PDF version of The Physicians Alliance Corp. v. Wellcare Health Insurance of Arizona case analysis here.
When it comes to discovery proportionality arguments, you have no more important asset than your credibility. Be careful to investigate fully before making representations to an adversary or court, because if those representations turn out to be mistaken-- especially if wildly mistaken-- your chances of winning will diminish considerably.