E-Discovery of Inaccessible ESI and the “Good Cause” Standard

June 26, 2009

Complex civil litigation often hinges on discovery, and the discovery scheme of the Federal Rules of Civil Procedure has traditionally revolved around a cost benefit analysis, with the cost shifting to the requesting party if production is unduly burdensome. The advent of the new e-discovery rules continue this, as provided in FRCP 26(b)(2)(B): “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.”

This naturally raises the question, what exactly does “reasonably accessible” mean?

The “reasonably accessible” limit reflects worry about e-discovery’s “enormous costs … becoming the single most expensive facet of litigation.” The cost of e-discovery has two key components: (1) quantity – with businesses exchanging 2.5 trillion e-mails annually, 2 million at a typical company, and with computer files often remaining recoverable after deletion, the amount of attorney time needed to review discovery, and the potential for discovery disputes, has increased; and (2) inaccessibility – digital data “can be expensive or virtually impossible to recover” due to “outmoded storage media and software, and dispersion of information.” …[E]-discovery can cost tens or hundreds of thousands of dollars in even fairly typical cases[.]
Scott A. Moss, LITIGATION DISCOVERY CANNOT BE OPTIMAL BUT COULD BE BETTER: THE ECONOMICS OF IMPROVING DISCOVERY TIMING IN A DIGITAL AGE, 58 Duke L.J. 889, 894 (March, 2009).

Of course, nothing in law is that simple. What is that important piece of discovery isn’t reasonably accessible? FRCP 26(b)(2)(B) goes on to say that “the court may nonetheless order discovery from such sources if the requesting party shows good cause.” However, it would seem that the “good cause” standard is anything but standard:

The Federal Rules of Civil Procedure contain numerous good cause standards. It is a canon of statutory construction that a word used in multiple places in the same legal text should have the same meaning. Thus, the various good cause standards in the Rules should receive the same interpretation. But they do not. […] Even within the more limited universe of discovery rules, there is no single definition of good cause. A party seeking discovery of information that is not relevant to any party’s claims or defenses but is relevant to the subject matter of the action must show good cause pursuant to Rule 26(b)(1); a party seeking a protective order limiting discovery must demonstrate good cause pursuant to Rule 26(c); and a party seeking to conduct an adverse medical examination of another party must demonstrate good cause pursuant to Rule 35(a). Although these good cause standards all appear in the discovery rules, they have each been interpreted differently. As discussed above, the Rule 26(b)(1) good cause standard is weak and does not pose a significant hurdle to parties seeking discovery.
Henry S. Noyes, GOOD CAUSE IS BAD MEDICINE FOR THE NEW E-DISCOVERY RULES 21 Harv. J. Law & Tec 49 at 74-75, (Fall, 2007).

Electronically stored information is hardly a novelty by anyone standards, but in the federal law of discovery it is still a very new concept indeed. It would appear there are still a few kinks that need to be worked out.

One Response to “E-Discovery of Inaccessible ESI and the “Good Cause” Standard”

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