Tread Lightly: eDiscovery Greed May Leave You With None At All

On July 14, 2014, the Court in United States v. University of Nebraska at Kearny (No. 4:11CV3209) took a significant step in support of Federal Rules 1 and 26.  Magistrate Judge Cheryl R. Zwart denied plaintiff’s motion to compel defendants to use plaintiffs’ proposed search terms to cull electronically stored information (ESI) for review and production.  The Court’s order effectively discharged defendants’ obligation to produce any ESI.  And the Court issued this order notwithstanding both that 1) the parties had agreed to a stipulation summarizing protocol for the production of ESI shortly after the outset of the case, and 2) plaintiff previously produced ESI as part of its production to defendants’ discovery requests.  In short, plaintiffs’ unwillingness to fairly compromise as to the breadth of search terms aimed at reasonably limiting the scope of ESI production came back to bite.

The Court’s reasoning for its decision centered around three primary concepts .  First, the government failed to provide the Court with any cost/benefit analysis with respect to the sought-after discovery or a sound articulation of how the cost and burden required to comply with plaintiff’s demands could be justified.  Plaintiff did not demonstrate a reasonable likelihood of uncovering relevant and admissible evidence nor did it suggest some form of reasonable cost allocation under the circumstances.  Second, as the Court noted, the complaint in the underlying case is limited to alleged violations of the Fair Housing Act (FHA) in connection with prohibiting students from living with emotional assistance animals in university housing.  But the government’s proposed scope of production would extend well beyond that subject and compromise the privacy of individuals with no relationship to the lawsuit.  The Court was unpersuaded by the government’s argument that the expanded scope was permissible and necessary to elicit evidence of comparator practices that could demonstrate institutional and/or patterned discrimination.  Third, and most notably, the Court took a uniquely unorthodox approach by promoting more traditional discovery mechanisms as adequate substitutes for ESI discovery, stating that “[s]earching for ESI is only one discovery tool…the court is convinced ESI is neither the only nor the best and most economical discovery method for obtaining the information the government seeks.”  Even further, “[s]tandard document production requests, interrogatories, and depositions should suffice—and with far less cost and delay.”

It is worth noting that the Court had virtually no appetite for the government’s one alternative proposal to their own search term protocol, which would require defendants to produce the complete universe of collected ESI without filtering, which the government argued would be appropriate with a claw-back agreement in place.  Aptly noted by the Court, this proposal alternative might reduce costs, but would heighten the risk of privilege concerns and would also necessarily result in overbroad and improper disclosure of private personal information unrelated to the lawsuit.

Is this outcome a reactionary step backwards from resolving this sort of dispute through limited-scope ESI production, or is the outcome apt in that it exemplifies intolerance of overreaching and costly eDiscovery demands?  Regardless, and most importantly, the lesson here is simple: cooperation, proportionality and reasonableness are tantamount, and it is critical that attorneys understand how to approach these disputes, especially in light of where they are litigating.  When a court has an understanding and staunch viewpoint sufficient to dispose of a government request—rather than striving to limit the scope of the request—private litigants should certainly proceed with caution before bringing an aggressive eDiscovery demand before the court.

About The Author

Jason Bonk is an experienced litigator in the firm's New York office. He represents Fortune 500 companies along with middle-market businesses in a variety of high-stakes matters, including complex commercial cases involving contract claims as well as fiduciary and other equitable claims, class actions, white collar investigations, labor and employment disputes, and bankruptcy litigation. Prior to joining Cozen O'Connor, Jason spent most of his career at Weil, Gotshal & Manges, and practiced, most recently, at Kleinberg, Kaplan, Wolff and Cohen.

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