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After Defendants Produce Over 1.46 Million Pages of ESI, Plaintiff Asks For MoreA federal district court judge characterized Plaintiff's motion to compel as a "fishing expedition" and held that the over 1.46 million pages of electronically stored information (ESI) produced by the Defendants was sufficient production pursuant to the parties' Agreement for Electronic Discovery. Thermal Design, Inc. v. Guardian Building Products, Inc., No. 08-C-828, 2011 WL 1527025 (E.D. Wisc. Apr. 20, 2011). Holding that the Defendants had met their burden to show that the additional discovery sought was "not reasonably accessible," the Court denied Plaintiff's motion to compel further discovery of ESI. Despite spending seven months and over $600,000 in preparing its production of ESI, Defendants were requested to sort through and produce "all archived e-mail accounts and shared network drives, without any restriction as to custodian or individual." Defendants protested that doing so would take several months and cost an additional $1.9 million. Noting that Fed. R. Civ. P. 26(b)(2)(B) excuses a party's production of ESI if that party demonstrates that the information sought is "not reasonably accessible because of undue burden or cost," the Court held that the requested e-mails were not reasonably accessible.Although it found that the Defendants had met their burden, the Court allowed the Plaintiff an opportunity to show that the cost and burden associated with the production was "justified in the circumstances of the case." Nevertheless, the Court found Plaintiff's justifications lacking. Plaintiff argued that concerns regarding burden and cost should be dismissed because "Defendants are a series of large companies with considerable resources." The Court responded by warning that it cannot "countenance fishing expeditions simply because the party resisting discovery can afford to comply." Furthermore, Plaintiff failed to establish the importance of the information sought and why such information would justify the additional burden to the Defendants. The Court also considered the Defendants' competing motion to compel Plaintiff's answers to two interrogatories, both of which included extensive subparts. Plaintiff argued that the interrogatories exceeded the number limit under the Federal Rules "because of the large number of responsive documents and also by the excessive use of subparts." Acknowledging a local rule "emphasiz[ing] that the number of permissible interrogatories 'may not be expanded by the creative use of subparts,'" the Court held that the subparts should be counted as separate interrogatories. In doing so, the Court cited to Professor Moore's postulation that "subparts may be counted as part of one interrogatory if they are logically and necessarily related to the primary question." By contrast, a subpart that "introduces a line of inquiry that is separate and distinct from the inquiry made by the portion of the interrogatory that precedes it," should be considered multiple interrogatories.  More Recent Articles |
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