eDiscovery Issue: Email Production Deemed Too Costly Applying Cost-Benefit Analysis

Litigators (and clients alike) often complain about the cost of producing emails. To be sure, it is often costly even in small matters. In this case, the defendant came armed with “persuasive, credible, and reliable” numbers to support its claim that the cost of producing 219 GB of email outweighed the benefits to the plaintiff, and the court agreed.

The defendant objected to a new production request because producing was unduly burdensome. The defendant represented during a discovery conference that production would cost approximately $120,000 (the same amount at stake in the matter). The court ordered the defendant to prove the cost breakdown associated with searching for and producing responsive documents, along with cost estimates for alternative searches, such as the cost breakdown associated with producing only relevant emails from witnesses to be deposed.

In its supplemental briefing, the defendant did just that. It provided the court with a vendor estimate that showed that the searching alone would cost well over $120,000. The court considered the Statements of Work – standard eDiscovery industry documents – with details of the vendor’s proposed work and cost estimates to be persuasive, credible, and reliable. Even reducing the scope to just individuals plaintiff had noticed for depositions would cost over $30,000.

Although the information sought by the plaintiff’s may have been helpful, applying the cost-benefit analysis proved that spending this type of money to produce emails in response to five requests, given the defendant’s ongoing production related to other request , was not justified. Be prepared to show the court real numbers to back up your claims of undue burden and you’ll stand a greater chance of winning your challenge.