In Ball v. Manalto, Inc., No. C16-1523 RSM (W.D. Wash. May 5, 2017), a state-law employment contract dispute, the parties could not agree to appropriate search terms for defendant’s ESI, which contained plaintiff’s email while previously employed by defendant and materials related to plaintiff’s termination for purported poor performance.  Despite several search term proposals from both parties, defendant refused to produce responsive ESI that would take “approximately 340-380 attorney hours” and “$100,000-$120,000 in attorneys’ fees to review” as too burdensome under Federal Rule of Civil Procedure 26(b).  Plaintiff brought a motion to compel, contending that “all emails he sent or received” were relevant to his claims or defendant’s defense, and that defendant’s “claimed ‘burden’ on this issue [was] . . . the ‘burden’ of analyzing the information for [defendant’s] own case and defenses” – not an appropriate consideration under Rule 26.  Defendant countered that it had already produced all of plaintiff’s emails and that email from other custodians was overly burdensome and not proportional to the needs of the case.  Plaintiff replied that he recalled sending “hundreds” of emails, compared to the 20 emails defendant actually produced, and that defendant’s failure to produce more indicated either “a failure to adequately search or spoliation.”

The court granted the motion to compel, crediting plaintiff’s recollection of sending “hundreds” of emails and finding that defendant “failed to present any evidence that they have produced all of [plaintiff’s] emails” where the sole evidence offered was a declaration from an attorney who did “not appear to [have] personal knowledge.”  Though the court did not find the circumstances “enough to conclude that [defendant] failed to preserve or destroyed evidence,” the court nevertheless ordered defendant to provide a declaration explaining how ESI had been stored or searched.  The court further found that emails from custodians other than the plaintiff were relevant and proportional, as defendant was “lowballing the potential value of this case.”  Finally, the court awarded plaintiff his attorney’s fees and expenses in bringing the motion to compel.