A Self-Inflicted High Discovery Cost Does Not Render Information “Inaccessible”
Wagoner v. Lewis Gale Med. Ctr., LLC, No. 7:15cv570 (W.D. Va. July 13, 2016).
In Wagoner v. Lewis Gale Med. Ctr., LLC, court held that the plaintiff’s “limited request” for discovery, “restricted by custodian, search terms, and time period,” was proportional to the needs of the case despite the exorbitant cost quoted by the responding party. Further, the court noted that data is only “inaccessible” when it is “not readily usable,” not merely when it is difficult to collect and review.
The plaintiff, Jim Wagoner, worked briefly as a security guard for the defendant, Lewis Gale Medical Center. After two months, during which Lewis Gale refused to give Wagoner a printed copy of his schedule, Lewis Gale terminated Wagoner’s employment. Wagoner, alleging that he suffered from dyslexia and had difficulty copying down his schedule, sued under the Americans with Disabilities Act.
During discovery, Wagoner brought this motion to compel production of electronically stored information (ESI) maintained by his former supervisors, Frank Caballos and Bobby Baker. Wagoner’s limited request covered four months and included a short list of search terms including his name in conjunction with words such as “reading,” “slow,” and “schedule.”
Lewis Gale objected due to the “difficulty and unreasonable expense in performing [the] requested searches,” which “would involve seven computers…and an exchange server.” The company asserted that it did “not have the capability to perform” this search and estimated the cost for a third-party vendor search at $45,570. This, it argued, was “not proportional” because it outstripped Wagoner’s “potential damages.” Lewis Gale further argued that it had already provided “e-mail and other documents maintained by Caballos and Baker” but acknowledged that its search had “been limited to these individuals’ search of their own information.”
The court first noted that Rule 26 of the Federal Rules of Civil Procedure allows a party to “obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim…and proportional to the needs of the case.” As a threshold matter, the court found that “Wagoner’s requested ESI search is relevant to the claims” he asserted: “that his dyslexia caused him to have difficulty reading and copying his posted work schedule…and that his termination violated the ADA.”
The court then noted that “relevant ESI may still not be discoverable…if the [objecting] party can show that the information is ‘not reasonably accessible because of undue burden or cost.’” Here, Lewis Gale argued that the ESI sought was “unduly burdensome or expensive” because it was kept in an “inaccessible format.”
The court observed first that this was a self-created problem, as Lewis Gale “apparently chose to use a system that did not automatically preserve e-mails for more than three days.” Moreover, the court explained the distinction that “inaccessible” data is not merely difficult to find, but rather “is not readily usable,” requiring that “backup tapes must be restored…fragmented data must be de-fragmented, and erased data must be reconstructed.”
Lewis Gale stated only that it could not perform Wagoner’s requested searches “in-house,” not that the data would need to be “restored, de-fragmented, or reconstructed.” The court found that Lewis Gale had “not shown that the burdens and costs” of the search rendered “the requested information not reasonably accessible” or that the ESI sought was disproportionate. Nor did Lewis Gale offer any “other reasonable alternative”; the court summarily rejected Lewis Gale’s proposal that “the very person who may have authored relevant documents” could effectively search for inculpatory discoverable ESI.
Accordingly, “[i]n light of the limited request, restricted by custodian, search terms, and time period,” the court found “the request proportional to the needs of the case” and granted Wagoner’s motion. The court rejected Lewis Gale’s request for cost-shifting, noting that cost-shifting is appropriate “only when electronic discovery imposes an ‘undue burden or expense.’”
Wagoner prevailed here because he strictly limited his search and clearly demonstrated the relevance of all the information he sought. Conversely, Lewis Gale lost because it chose to keep data in a format that was difficult to access but was not “inaccessible.” Before objecting to a discovery request based on costs, remember that “disproportionate” and “inaccessible” are not synonymous with “expensive,” and marshal evidence showing the difficulty of recovering or restoring data—preferably through obstacles not of your own making.