Do I Have to Produce Deleted or Corrupted ESI?

Under Federal Rule of Civil Procedure 26(b)(2)(b), and similar state rules such as Illinois Supreme Court Rule 201, absent good cause, litigants are not required to produce electronically stored information (ESI) that is “not reasonably accessible.” But what information is “not reasonably accessible” and what is a good cause justifying its production?

Whether ESI is “Not Reasonably Accessible” Turns on Burden, Cost, and Proportionality

A party may avoid discovery of otherwise relevant ESI if it establishes the information is “not reasonably accessible because of undue burden or cost.” Fed. R. Civ. P. 26(b)(2)(B). “[W]hether production of documents is unduly burdensome or expensive turns primarily on whether it is kept in an accessible or inaccessible format . . . [which] turns largely on the media on which it is stored.” Zubulake v. UBS Warburg LLC, 217 F.R.D. 309, 318 (S.D.N.Y. 2003).

Get your Rule 26(f) Action Item Checklist now!

To determine whether the requested information is reasonably accessible, courts look not only at the ease of access, but also at the “proportionality” of the request. If ESI is difficult or expensive to access, such as deleted or fragmented data, requiring its production may be disproportionate to the issues or amount in controversy presented in a case. For instance, the notes to Illinois Supreme Court Rule 201, following the lead of the Seventh Circuit Electronic Discovery Committee Principles Relating to the Discovery of Electronically Stored Information 2.04(d), state:

The proportionality analysis called for [in e-discovery rules and law] may indicate that the following categories of ESI should not be discoverable; (A) “deleted,” “slack,” “fragmented,” or “unallocated” data on hard drives; (B) random access memory (RAM) or other ephemeral data; (C) on-line access data; (D) data in metadata fields that are frequently updated automatically; (E) backup data that is substantially duplicative of data that is more accessible elsewhere; (F) legacy data; (G) information whose retrieval cannot be accomplished without substantial additional programming or without transforming it into another form before search and retrieval can be achieved; and (H) other forms of ESI whose preservation or production requires extraordinary affirmative measures.

Case Law Examples of “Not Reasonably Accessible” Data

The following are examples of court decisions finding certain ESI not reasonably accessible and exempt from e-discovery obligations.

Best Buy Stores v. Developers Diversified Realty, 247 F.R.D. 567 (D. Minn. 2007) (Database not reasonably accessible because of the high cost to restore).

Rodriguez-Torres v. Gov. Dev. Bank of Puerto Rico, 265 F.R.D. 40 (D.P.R. 2010) (ESI requested in employment discrimination case not reasonably accessible because “too high of a cost for the production of the requested ESI in this type of action.”)

Party Declining to Produce ESI Should Provide Detail to Evaluate Burdens and Costs of Production

A party seeking to avoid the production of ESI that is not reasonably accessible should identify it and provide “enough detail to enable the requesting party to evaluate the burdens and costs of providing the discovery and the likelihood of finding responsive information on the identified sources.” Mikron Industries, Inc. v. Hurd Windows & Doors, Inc., No. C07-532RSL (D. Wash. April 21, 2008); Dahl v. Bain Capital Partners, LLC, 655 F. Supp. 2d. 146, 149 (D. Mass. 2009); Grant v. Homier Distributing Co., No. 3:07-CV-116 JVB (N.D. Ind. August 24, 2007). The responding party must provide this information as part of the meet and confer process and also permit the court to consider shifting the costs of production to the requesting party.

Good Cause Supporting Production of Difficult to Access ESI Hinges on Justification of Burden and Cost of Production

Under Fed. R. Civ. P. 26(b)(2)(B), even if the information is “not reasonably accessible,” it must be produced upon a showing of good cause. The Advisory Committee Notes state that “good cause” hinges on whether the burdens and costs of production “can be justified in the circumstances of the case.” However, Courts may condition discovery upon payment by the requesting party of part or all of the reasonable costs of obtaining information from sources that are not reasonably accessible.

The notes to Rule 26 offer seven factors to consider when determining if good cause exists to require the production of ESI that is not reasonably accessible:

The decision whether to require a responding party to search for and produce information that is not reasonably accessible depends not only on the burdens and costs of doing so, but also on whether those burdens and costs can be justified in the circumstances of the case. Appropriate considerations may include: (1) the specificity of the discovery request; (2) the quantity of information available from other and more easily accessed sources; (3) the failure to produce relevant information that seems likely to have existed but is no longer available on more easily accessed sources; (4) the likelihood of finding relevant, responsive information that cannot be obtained from other, more easily accessed sources; (5) predictions as to the importance and usefulness of the further information; (6) the importance of the issues at stake in the litigation; and (7) the parties’ resources.

For instance, in Tener v. Cremer, 931 N.Y.S.2d 552 (App. Div.  2011), the court concluded that a defamation plaintiff demonstrated “good cause” necessitating a cost/benefit analysis to determine whether the case warranted restoration and retrieval of deleted information because the requested information might be the only way to establish the identity of the alleged defamer. Similarly, in W.E. Aubuchon Co., Inc. v. BeneFirst, LLC, 245 F.R.D. 38 (D. Mass. 2007), the court found good cause to order production of hard to retrieve medical claim files because the information was integral to proving culpability and damages.

Even Data that is “Not Reasonably Accessible” Must be Preserved

It is important to keep in mind that the obligation to produce ESI that is not reasonably accessible is distinct from a party’s obligation to preserve it. Even if ESI is not reasonably accessible it must be preserved if a party knows it is likely to contain relevant evidence. The notes to Rule 26 state that “[a] party’s identification of sources of electronically stored information as not reasonably accessible does not relieve the party of its common-law or statutory duties to preserve evidence. Whether a responding party is required to preserve unsearched sources of potentially responsive information that it believes are not reasonably accessible depends on the circumstances of each case. It is often useful for the parties to discuss this issue early in discovery.”