Cason-Merenda v. Detroit Medical Center, Case No. 06-15601 (E.D. Mich. July 7, 2008)

Rule 26(b)(2)(B) of the Fed. Rules Civ. P. is a very powerful tool. It makes the question of accessibility of electronic data a function of the case – the needs of the case, the amount in controversy, the parties' resources, the importance of the issues at stake in the action, and the importance of the discovery in resolving the issues. Rule 26(b)(2)(C)(iii) expressly spells out these factors. In Cason-Merenda, Magistrate Judge Donald A. Scheer held that the objective of the Rule is to facilitate the avoidance of undue burden or cost, not its distribution.

Defendant filed a motion to shift 50% of the cost of production of certain ESI to plaintiffs after the production had been made. To make matters worse, defendant waited until well after the deadline for filing such a motion under the Court’s scheduling Order. Judge Scheer was not sympathetic. He denied the motion because it was late, and he denied it because it ran afoul of the both philosophy behind the Federal Civil Rules and their express terms.

Rule 26(b)(2)(B) states:

Specific Limitations on Electronically Stored Information. A party need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the party from whom discovery is sought must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

The threshold requirement is to designate the material as “not reasonably accessible because of undue burden or cost.” The requesting party must then file a motion to compel production of the material, at which point, the responding party must actually demonstrate that the material is in fact “not reasonably accessible because of undue burden or cost.” As the court noted,

If that showing is made, the court may only order the discovery from such sources “if the requesting party shows good cause…,” in which case the court may specify conditions for discovery (including cost sharing). Implicit in the grant of authority to impose such conditions is the proposition that the requesting party may elect either to: (a) meet the conditions, or (b) not obtain the disputed discovery (thus avoiding undue burden or cost to the producing party).

Slip Opinion at 4-5. It is the election that is key.

In the situation here, defendant had already chosen to suffer the undue burden or cost. Thus, the court was powerless to avoid the unnecessary expense or specify conditions other than cost sharing. The court held that the Rule must be read as a means to avoid undue burden or cost. Defendant’s approach eliminated that possibility. Accordingly, the court denied the motion.

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