eDiscovery Daily Blog

• May 2, 2013

 

In the case we covered on Monday, the court ruled for the defendant in their effort to avoid what they felt to be undue burden and expense in preserving data.  Here is another case where the defendant made an undue burden claim, but with a different result.

In the case In re Coventry Healthcare, Inc.: ERISA Litigation, No. AW 09-2661 (D. Md. Mar. 21, 2013), Maryland Magistrate Judge Jillyn K. Schulze rejected the defendants’ claim of undue burden where they failed to suggest alternatives to using the plaintiffs’ search terms and where they could enter a clawback order to eliminate the cost of reviewing the data for responsiveness and privilege.

In this Employee Retirement Income Security Act (ERISA) class action, a discovery dispute arose when the defendants filed a motion to curtail the relevant time frame for discovery due in part to the burden it would impose on them. The plaintiffs sought discovery from February 9, 2007 to October 22, 2008; the defendants asked the court to limit it to January 1, 2008 to June 30, 2008.

The defendants relied on Rule 26(b)(2)(C)(iii) to establish that the burden of producing the data outweighed any benefit it offered the plaintiffs. Judge Schulze noted that the “party seeking to lessen the burden of responding to electronic records discovery ‘bears the burden of particularly demonstrating that burden and of providing suggested alternatives that reasonably accommodate the requesting party’s legitimate discovery needs’”.

Here, the defendants claimed they tested the plaintiffs’ proposed search terms on the custodians’ data and hit 200,000 documents. They claimed it would cost roughly $388,000 to process, host, and review the data for responsiveness and privilege. However, the defendants did not suggest “any alternative measures that could reasonably accommodate Plaintiffs’ discovery needs other than negotiating more refined search terms.”

In response, the plaintiffs argued they had tried to collaborate with the defendants to “develop appropriate searches for ESI by limiting the searches to certain designated custodians” and by shortening the discovery period by three months.

Judge Schulze found that the narrowing of the discovery period would reduce the costs, and that “a clawback order can protect Defendants against a claim of waiver, such that Defendants need no longer bear the cost of reviewing the ESI for responsiveness and privilege.” Finally, “[t]o further reduce any undue burden, Plaintiffs may need to refine their proposed search terms to narrow the pool of potentially relevant documents.”  With these options available, Judge Schulze found that the defendants had not met their burden to show that producing the evidence would be unduly burdensome.

So, what do you think?  Should the defendant’s request have been granted?  Please share any comments you might have or if you’d like to know more about a particular topic.

Case Summary Source: Applied Discovery (free subscription required).  For eDiscovery news and best practices, check out the Applied Discovery Blog here.

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